By Paul Blythe
Usually a reductio ad absurdum argument is made in an attempt to refute a claim by extending the claim to the point of absurdity.
But Donald Trump’s lawyer’s claim that Trump has complete immunity from criminal prosecution for his official actions while he was president is the first time I’ve heard someone try to defend a claim all the way to point of absurdity.
John Sauer, attorney for the former president, argued Thursday before the U.S. Supreme Court that Trump, or any former president, has permanent criminal immunity for his official acts unless he is first impeached by the House and convicted by the Senate. That’s unclear and seems ridiculous, and it's not even the absurd part.
The absurdity is that Sauer argued that the only official actions for which a president can be held criminally responsible after being impeached and convicted are for violating those laws where Congress, in writing the law, clearly and explicitly said this law applies to the President of the United States. If it’s a law like fraud, or even murder, that applies to everyone else in the nation, and yet it doesn’t mention that, hey, by the way, this law also applies to the President of the United States of America, then the president has absolute immunity from being criminally prosecuted for breaking that law, according to Sauer.
Of course, isn’t that the way of the political right these days? Extremism to the point of absurdity all of the time.
And of course, none of the Supreme Court justices went so far as to clearly and explicitly say that Sauer's reading of the executive powers of the president is absurd, although three or four of them -- all the women -- seriously questioned Sauer’s “novel theory,” as it was called by Sauer’s adversary, Michael Dreeben, the attorney representing U.S. Special Counsel Jack Smith before the Supreme Court.
Now, most legalese sounds forbidding, supercilious and confusing to us non-lawyers, but it doesn’t take a lawyer to see the difference here between Trump’s attorney and the government’s.
The first is a hired gun willing to make up any nonsense to try to persuade the justices to dismantle or at least slow down Jack Smith’s election-interference case against Trump by expunging all charges based on Trump’s official acts from the indictment. He would have asked for charges based on private actions to be dropped too, except that even he had to admit there is no immunity for the illegal private acts of a president.
The other lawyer, Dreeben, is a longtime civil servant who presents a logical argument based on Americans’ common understanding of our history and civics, with comments such as “The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain.”
Dreeben clearly came across as the more sensible of the two on Thursday, but you don’t have to take my word for it. From the 177-page transcript of the lawyers’ oral arguments posted on the Supreme Court of the United States website, here are both attorneys’ opening statements and selected responses to the justices’ questions as well as selected comments from the justices:
JOHN SAUER, ATTORNEY FOR DONALD TRUMP, PETITIONER
OPENING STATEMENT
MR. SAUER: “Mr. Chief Justice, and may it please the Court: Without presidential immunity from criminal prosecution, there can be no presidency as we know it. For 234 years of American history, no president was ever prosecuted for his official acts. The Framers of our Constitution viewed an energetic executive as essential to securing liberty. If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed. Every current president will face de facto blackmail and extortion by his political rivals while he is still in office. The implications of the Court's decision here extend far beyond the facts of this case. Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing U.S. citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies? The answer to all these questions is no. Prosecuting the president for his official acts is an innovation with no foothold in history or tradition and incompatible with our constitutional structure. The original meaning of the Executive Vesting Clause, the Framers' understanding and intent, an unbroken historical tradition spanning 200 years, and policy considerations rooted in the separation of powers all counsel against it. I welcome the Court's questions.”
MICHAEL DREEBEN, ATTORNEY FOR SPECIAL COUNSEL, RESPONDENT
OPENING STATEMENT
MR. DREEBEN: “Mr. Chief Justice, and may it please the Court: This Court has never recognized absolute criminal immunity for any public official. Petitioner, however, claims that a former president has permanent criminal immunity for his official acts, unless he was first impeached and convicted. His novel theory would immunize former presidents from criminal liability for bribery, treason, sedition, murder, and, here, conspiring to use fraud to overturn the results of an election and perpetuate himself in power. Such presidential immunity has no foundation in the Constitution. The Framers knew too well the dangers of a king who could do no wrong. They therefore devised a system to check abuses of power, especially the use of official power for private gain. Here, the executive branch is enforcing congressional statutes and seeking accountability for Petitioner's alleged misuse of official power to subvert democracy. That is a compelling public interest. In response, Petitioner raises concerns about potential abuses. But established legal safeguards provide layers of protections, with the Article III courts providing the ultimate check. The existing system is a carefully balanced framework. It protects the president but not at the high constitutional cost of blanket criminal immunity. That has been the understanding of every president from the framing through Watergate and up to today. This Court should preserve it. I welcome the Court's questions.”
WHAT’S AT STAKE
Just from the opening statements alone, it is clear that the aim of the lawyer for Trump is to expand the imperial power of the presidency with unchecked immunity while the lawyer for the Department argues for maintaining the traditional checks and balances as they exist.
Embedded in that debate is the more immediate question of what to do about Trump: A ruling for the right not only could help Trump’s election chances but could pave the way for him to become an absolute tyrant if elected. A ruling for the left simply leaves open the possibility that Trump goes to trial for his actions in trying to overturn the results of the 2020 election, although even that would not be guaranteed because the Supreme Court’s slowness in scheduling Thursday’s arguments could well delay the scheduling of any remaining trial until after the 2024 election.
And the questions and comments of the justices Thursday not only reaffirmed the deep divide between court’s conservatives and liberals on what type of government the country should have, but they also made it clear that Democrats must win elections at all levels this year -- the presidency, Congress and state legislatures -- if democracy as we have known it, the democracy of Jefferson, Lincoln, FDR and LBJ, is to persevere.
THE CONSERVATIVE JUSTICES
Most of the six justices appointed by Republican presidents appeared to accept Sauer’s premise that blanket immunity for official acts is necessary for a president to do his job and is essentially inherent in the Constitution, with their questions focusing mostly on how to apply his theory.
More striking, however, was that even though the appeal seeking immunity for Trump stemmed from the insurrection and election interference case brought against him by Special Counsel Jack Smith, the majority of the conservative justices did not want the lawyers to address how presidential immunity would affect the Trump case. Instead, they focused their questions on how presidential immunity might affect hypothetical cases for future presidents.
Justices Neil Gorsuch and Brett Kavanaugh were both explicit in saying they were not focused on the “here and now of this case,” with Gorsuch saying it twice: “And, again, I'm not concerned about this case, but I am concerned about future uses of the criminal law to target political opponents based on accusations about their motives.”
Justice Samuel Alito also said, “I’m not discussing the particular facts of this case,” but in the same breath he still asked a detailed question about the charge of conspiracy to defraud the United States that is being applied in the case against Trump.
Of all the Republican-appointed justices, Alito asked the most probing questions of Dreeben about the special counsel’s position that presidents do not have blanket immunity from criminal prosecutions, and in at least one round he may have gotten more than he bargained for:
ALITO: “Mr. Dreeben, you dispute the proposition that a former president has some form of immunity.”
DREEBEN: “Mm-hmm.”
ALITO: “But, as I understand your argument, you do recognize that a former president has a form of special protection, namely, that statutes that are applicable to everybody must be interpreted differently under some circumstances when they are applied to a former president. Isn't that true?”
DREEBEN: “It is true because, Justice Alito, of the general principle that courts construe statutes to avoid serious constitutional questions. And that has been the longstanding practice of the Office of Legal Counsel in the Department of Justice.”
ALITO: “All right. So this is more, I think, than just a quarrel about terminology, whether what the former president gets is some form of immunity or some form of special protection…. If it's just a form of special protection -- in other words, statutes will be interpreted differently as applied to a former president -- then that is something that has to be litigated at trial. The former president can make a motion to dismiss and may cite OLC opinions, and the district court may say: Well, that's fine, I'm not bound by OLC and I interpret it differently, so let's go to trial. And then there has to be a trial, and that may involve great expense and it may take up a lot of time, and during the trial, the -- the former president may be unable to engage in other activities that the former president would want to engage in. And then the outcome is dependent on the jury, the instructions to the jury and how the jury returns a verdict, and then it has to be taken up on appeal. So the protection is greatly diluted if it takes the form that you have proposed. Now why is that better?”
DREEBEN: "It's better because it's more balanced. The blanket immunity that Petitioner is arguing for just means that criminal prosecution is off the table, unless he says that impeachment and conviction have occurred. Those are political remedies that are extremely difficult to achieve. In a case where the conduct, misconduct, occurs close to the end of a president's term, Congress is unlikely to crank up the machinery to do it, and if the impeachment trial has to occur after the President has left office, there's an open question about whether that can happen at all.”
Dreeben responded with a similarly well-placed hit when Chief Justice John Roberts pitched him a question about his defense of the appellate court’s denial of Trump’s petition for presidential immunity, which is what led the case to being appealed to the Supreme Court in the first place.
ROBERTS: “What concerns me is, as you know, the court of appeals did not get into a focused consideration of what acts we're talking about or what documents we're talking about because of its adoption of what you termed, and I agreed quite correctly, is a tautological statement. Because the fact of prosecution was enough, enough to take away any official immunity…they had no need to look at what courts normally look at when you're talking about a privilege or immunity question.”
DREEBEN: Well, I think I would take issue, Mr. Chief Justice, with the idea of taking away immunity. There is no immunity that is in the Constitution, unless this Court creates it today. There certainly is no textual immunity…. But what is important is that no public official has ever had the kind of absolute criminal immunity that my friend (Sauer) speaks of, even with respect to the Speech or Debate Clause (a clause in the Constitution that prohibits the arrest of Senators and Representatives of Congress while their chamber is in session and they are in attendance) …. Nothing like that ended up in the Constitution for the presidents, and that's because one of the chief concerns of the Framers was the risk of presidential misconduct. They labored over this. They adopted an impeachment structure that separated removal from office as a political remedy from criminal prosecution. This departed from the British model. The British model was you get impeached and criminally prosecuted and convicted in the same proceeding. The Framers did not want that. They wanted a political remedy in case a president was engaging in conduct that endangered the nation. He could be removed. He can't be prosecuted while he's a sitting president. That's been the longstanding Justice Department position.”
That’s four of the Republican-appointed justices. And then there is Justice Clarence Thomas, whose wife, Ginni, participated in the effort to overthrow the 2020 election. He didn’t do much Thursday – just played his traditional role of asking the first question of the lawyers in argument – but why was he even in court? Why hasn’t he recused himself? Why hasn’t Roberts objected to his presence?
THE OTHER SIDE
JUSTICE JACKSON
The three justices appointed by Democratic presidents, and to some extent Justice Amy Coney Barrett, questioned all of Sauer’s premises, with Justice Ketanji Brown Jackson, a President Biden appointee, providing the most vigorous challenges by striking at the very core of Sauer’s claims.
In one sequence, Jackson barraged Sauer with a series of questions casting doubt on his and the conservative justices’ assumption that a president needs absolute criminal immunity just to allow him to do his job without inhibition.
“Why is it as a matter of theory … that the president would not be required to follow the law when he is performing his official acts? Everyone else -- everyone else, there are lots of folks who have very high-powered jobs, who make a lot of consequential decisions, and they do so against the backdrop of potential criminal prosecution if they should break the law in that capacity.”
“But … if there's no threat of criminal prosecution, what prevents the president from just doing whatever he wants?”
"You seem to be worried about the president being chilled. I think that we would have a really significant opposite problem if the president wasn't chilled. If someone with those kinds of powers, the most powerful person in the world with the greatest amount of authority could go into office knowing that there would be no potential penalty for committing crimes, I'm trying to understand what the disincentive is from turning the Oval Office into, you know, the -- the -- the -- the seat of criminal activity in this country.”
“If the potential for criminal liability is taken off the table, wouldn't there be a significant risk that future presidents would be emboldened to commit crimes with abandon while they're in office? It's right now the fact that we're having this debate because OLC has said that presidents might be prosecuted. Presidents from the beginning of time have understood that that's a possibility. That might be what has kept this office from turning into the kind of crime center that I'm envisioning. But, once we say no criminal liability, Mr. President, you can do whatever you want, I'm worried that we would have a worse problem than the problem of the president feeling constrained to follow the law while he's in office.”
“I had one more question. Yeah. So what is the argument that the president of the United States, who you say is bound by the law, is not on notice that he has to do his job consistent with the law? I mean, to the extent that the clear statement rule comes in at all, it's about the person not being on notice. So I -- I guess I don't understand why Congress in every criminal statute would have to say ‘and the president is included.’ I thought that was the sort of background understanding that if they're enacting a generally applicable criminal statute, it applies to the president just like everyone else. So what is the clear statement that would have to be made in this context?”
Sauer responded with a lot of “I respectfully disagrees” or by referencing previous historic decisions, such as Nixon vs. Fitzgerald, a case that found the president had absolute immunity from personal damage liability for official presidential acts, but which Jackson reminded him was all about civil liability, not criminal liability.
And to the last question about the “clear statement” rule, Sauer answered, “Congress has to speak clearly before it interferes with the president’s powers, and we have here an indictment that seeks to criminalize objective conduct that falls within the heartland of core executive authority.”
But Dreeben, under questioning from Alito, later disputed the idea that the charges against Trump in the election-interference case have anything to do with the president’s core executive authority.
“As applied to this case, the president has no functions with respect to the certification of the winner of the presidential election,” Dreeben said. “It seems likely that the Framers designed the Constitution that way because, at the time of the founding, presidents had no two-term limit. They could run again and again and were expected, potentially, to want to do that. So the potential for self-interest would explain why the states conduct the elections. They send electors to certify who won those elections and to provide votes. And then Congress in a joint -- extraordinary joint session certifies the vote. And the president doesn't have an official role in that proceeding.”
All of which is to say that Trump’s alleged use of fraud to overturn the election was not an official act, but a private act for his personal benefit, and thus is an alleged crime for which he should not have any immunity.
JUSTICES KAGAN AND SOTOMAYOR
Justices Elena Kagan and Sonia Sotomayor, both appointees of President Obama, disputed another of Sauer’s principal claims -- that blanket presidential immunity was inherent in the Constitution -- by pointing out that founders nowhere explicitly said in the Constitution that the president is immune from criminal prosecution.
During one of the several times Sauer was extolling the wisdom of the Framers for being more concerned about the risk of factional strife than that of a president escaping criminal prosecution, Kagan bluntly said, “The Framers did not put an immunity clause into the Constitution. They knew how to. There were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn't provide immunity to the president. And, you know, not so surprising, they were reacting against a monarch who claimed to be above the law. Wasn't the whole point that the president was not a monarch and the president was not supposed to be above the law?”
Sauer responded weakly, “They did put an immunity clause in in a sense. They put in the Executive Vesting Clause, which was originally understood to … adopt a broad immunity principle that's set forth in the very broad language of Marbury against Madison. And also, they did discuss and consider what would be the checks on the presidency. And they did not say, oh, we need to have criminal prosecution.”
Kagan then went on the offensive: “Does it strike you as odd that your understanding of immunity goes way beyond what OLC (Department of Justice’s Office of Legal Counsel) has ever claimed for the former president?”
SAUER: “I view the OLC opinions here as strongly supporting us because anytime a congressional statute basically got anywhere near touching the president's prerogatives, they've said, oh, we're going to interpret the statute narrowly to avoid that.….”
KAGAN: “Well, that's a different question. I mean, what OLC has always said is that sitting presidents get immunity, but former presidents? No.”
Like Kagan, Sotomayor also pointed out that the Founders did not include presidential immunity in the Constitution before she took Sauer to task for what he is trying to do.
“There are amici here who tell us that the Founders actually talked about whether to grant immunity to the president. And, in fact, they had state constitutions that granted some criminal immunity to governors. And yet they didn't take it up. Instead, they passed an impeachment clause that basically says you can't remove the president from office except by a trial in the Senate.”
Then, she laid into Sauer: “This is what you're asking us to say…. A president is entitled for total personal gain to use the trappings of his office -- that's what you're trying to get us to hold -- without facing criminal liability.”
JUSTICE BARRETT
Justice Barrett, a Trump appointee, stood out as the only conservative justice to seriously question Sauer’s key assertions, including this exchange on why he believed only a president had to be impeached for a particular action before he could be criminally tried for it:
BARRETT: “So, Mr. Sauer, you've argued that the Impeachment Clause suggests or requires impeachment to be a gateway to criminal prosecution, right?”
SAUER: “Yes. I think that's the plain meaning of that second phrase in the clause.”
BARRETT: “Okay. So there are many other people who are subject to impeachment, including the nine sitting on this bench, and I don't think anyone has ever suggested that impeachment would have to be the gateway to criminal prosecution for any of the many other officers subject to impeachment. So why is the president different when the Impeachment Clause doesn't say so?”
SAUER: “Someone very important has made the opposite suggestion as to the president himself, which is Solicitor General Bork, which is reaffirmed in the OLC opinions on this, where the -- where Solicitor General Bork, in 1973, as to the issue of the vice president (Spiro Agnew), reviewed historical materials, and he said the sequence is mandatory only as to the president.”
CONCLUSIONS
SAUER’S: DISMISS TRUMP'S CHARGES
CHIEF JUSTICE ROBERTS: “And what is the consequence in terms of going forward (with the case) with your acknowledgment that those are private acts as opposed to official acts?”
SAUER: If you look at the -- the indictment here, there's a bunch of acts that we think are just clearly official…. The official stuff has to be expunged completely from the indictment before the case can go forward, and there has to be a determination at least on remand of what's official -- a two-stage determination of what's official and what's private.
ROBERTS: “Well, if you expunge the official part from the indictment, how do you -- I mean, that's like a one-legged stool, right? I mean, giving somebody money isn't bribery unless you get something in exchange, and if what you get in exchange is to become the ambassador to a particular country, that is official, the appointment. It's within the president's prerogative. The unofficial part is I'm going to get a million dollars for it. So, if you say you have to expunge the official part, how does that go forward?”
SAUER: “In this particular indictment, where we say virtually all the overt conduct is official, we don't believe it would be able to go forward.... They haven't disputed that they are official acts.”
DREEBEN’S: REJECT TRUMP'S APPEAL
Dreeben essentially argues that the Supreme Court should completely deny Trump’s petition for immunity as the appellate court has already done.
“So, Justice Jackson, I think it would be a sea change to announce a sweeping rule of immunity that no president has had or has needed,” he said at the conclusion of his questioning. “I think we have also had a perfectly functioning system that has seen occasional episodes of presidential misconduct. The Nixon era is the paradigmatic one. The indictment in this case alleges another. For the most part, I believe that the legal regime and the constitutional regime that we have works. And to alter it poses more risks.”
But earlier he said that even if the Supreme Court decided some of indictment’s criminal counts stemmed from official acts, thus providing Trump immunity for those charges, Trump could still be tried on the charges related to his private acts.
JUSTICE BARRETT: “You say, even if the Court were inclined to recognize some immunity for a former president's official acts, it should remand for trial because the indictment alleges substantial private conduct.”
DREEBEN: “Yes.”
BARRETT: “And you said that the private conduct would be sufficient.”
MR. DREEBEN: “Yes.”
BARRETT: “The Special Counsel (Jack Smith) has expressed some concern for speed and wanting to move forward. So, you know, the normal process, what Mr. Sauer asked, would be for us to remand if we decided that there were some official acts immunity and to let that be sorted out below (by a lower court). Is another option for the Special Counsel to just proceed based on the private conduct and drop the official conduct?”
DREEBEN: Well, two things on that, Justice Barrett. First of all, there's really an integrated conspiracy here that had different components as alleged in the indictment: working with private lawyers to achieve the goals of the fraud and, as I said before, the Petitioner reaching for his official powers to try to make the conspiracies more likely to succeed. We would like to present that as an integrated picture to the jury so that it sees the sequence and the gravity of the conduct and why each step occurred. That said, if the Court were to say that the fraudulent elector scheme is private, reaching out to state officials as a candidate is private, trying to exploit the violence after January 6th by calling Senators and saying please delay the certification proceeding is private campaign activity, we still think, contrary to what my friend said, that we could introduce the interactions with the Justice Department, the efforts to pressure the vice president, for their evidentiary value as showing the defendant's knowledge and intent. And we would take a jury instruction that would say you may not impose criminal culpability for the actions that he took. However, you may consider it insofar as it bears on knowledge and intent…”
OURS: VOTE BLUE
We know from experience that appellate judges’ questions during arguments can mislead observers and are not always predictive of how a court will rule.
So we don’t pretend to have any idea how this Supreme Court will rule, but these arguments have made it ever more clear to us the necessity of re-electing President Joe Biden as the only way of keeping Trump out of office, of defending our democracy from sliding into tyranny and of possibly putting the Supreme Court back on the road to sanity with the possibility of Biden being able to appoint successors for the next one or two justices to leave the court.