Trump's Bad Day in Court

The first of many to come

Following Tuesday morning’s oral argument in the District of Columbia, Donald Trump made some predictable comments to the press from a Washington, D.C., hotel. As he finished, a reporter shouted out a request that he use the moment to tell his followers, “No violence.” The former president walked out of the room without responding.

The Judges came prepared for oral argument on Trump’s immunity motion. Let’s start with the key figures in the argument:

Judges: Bush appointee Karen LeCraft Henderson. Biden appointees Florence Y. Pan and J. Michelle Childs.

Lawyer for Trump: Former Missouri Solicitor General John Sauer.

Lawyer for the Special Counsel: James I. Pearce, a career federal prosecutor who has worked in both DOJ’s public integrity section, which Jack Smith previously led, and in the Criminal Division’s appellate section.

The top line from the argument: a broad consensus among observers that the panel didn’t buy Trump’s immunity argument. None of the Judges seemed to believe Trump should be immune from prosecution. But each Judge came at it from a different vantage point. While they may end up agreeing on a single rationale for their decision, it’s also possible we could have an opinion with concurrences by one or more of the Judges, using different reasoning.

Mr. Sauer argued first because Trump is the petitioner—he lost in the trial court and is asking the Court of Appeals to reverse Judge Chutkan’s decision. Mr. Pearce, who argued second, began by telling the court that no other president in history claimed his immunity from prosecution extended beyond his time in office. A president’s role is unique, Pearce said, “but not above the law.”

The most telling points in the oral argument centered on hypotheticals offered by Judge Pan. Judges frequently use hypotheticals to help them understand what a ruling would mean both for the case at hand and in future cases. Judge Pan posed three to Sauer, asking whether, under his view of immunity, a president could:

• order Seal Team 6 to execute a political rival, and get away with it

• accept a payment for issuing a pardon, and get away with it

• sell nuclear secrets to a foreign power, and get away with it

Sauer argued that presidents can only be prosecuted if they are first impeached and convicted by the Senate. He, of course, has to argue this because otherwise, his client Donald Trump is in trouble.

It’s an unappetizing position. Sauer ran into still more trouble as the hypothetical was played out with both lawyers in turn, exploring the ways a president could avoid being impeached and convicted. They ranged from a president who resigns to avoid conviction, succeeds in concealing criminal conduct until he leaves office so he is never impeached, or even one who orders the deaths of his opponents in the Senate to prevent conviction. Under Trump’s theory of immunity, no prosecution would be available in these cases.

You don’t have to be a high-end appellate lawyer to understand that this argument is a stone-cold loser. At least in a democracy.

Judge Pan pointed out that Trump had taken a contradictory position in two earlier cases. During Trump’s 2021 impeachment and in Trump v. Vance where then-President Trump tried to prevent Manhattan DA Cy Vance from obtaining his tax returns, Trump’s lawyers argued he could be criminally prosecuted once he left office. Sauer was ultimately forced to concede they had taken that position then, but it’s not, he said “res judicata” here—not binding on Trump now. That one is a tough sell too, especially since Trump avoided conviction in the Senate by arguing he could be prosecuted in precisely this case after he left office. If the court accepts this view it would make a mockery of justice. This panel of Judges didn’t seem inclined that direction.

Trump is not the only former president who seems to have understood he could be prosecuted after leaving office. Judge Childs pointed out later in the argument that President Nixon was apparently so convinced he could be prosecuted that he sought a pardon.

The questions the panel had for the government focused less on whether Trump was entitled to immunity and more on what sort of rule they should fashion in the course of denying Trump’s motion. They were concerned with the rationale, the scope, and the future impact of their decision. “What should the rule be,” Pearce was asked at one point. The Judges wanted to know whether he was suggesting there was never immunity from criminal prosecution for presidents, or whether it should be available in some circumstances.

Pearce had a carefully crafted answer to this, and it was responsive to some of the side comments Sauer wove into his argument. When asked early on about immunity, Sauer said that without it, presidents would always have to look over their shoulders and fear prosecution when making difficult decisions. He argued that President Obama could be prosecuted for a drone strike that resulted in civilian deaths or that Joe Biden could be prosecuted over some unspecified wrongs at the border and face a “Texas jury.” Pearce suggested that presidents might sometimes have access to immunity from prosecution, for instance, in a narrow setting involving a decision made to protect national security, with little time to decide, and made in reliance on the advice of White House Counsel.

That carve-out wouldn’t apply to a president like Trump who ignored the advice of the White House Counsel and conspired with a group of power-hungry sycophants to steal an election for his own personal purposes. But it would protect a president who faces a difficult one like the Obama decision Sauer referenced. Pearce told the court they didn’t have to decide on the scope of any exceptions, only identifying the possibility and leaving decisions to future cases. This is a usual pattern for courts handling developing doctrines, and nothing particularly exceptional or objectionable if the court chooses this route.

This was the meat of the argument, the merit of Trump’s immunity defense. But before they got there, Judge Childs asked questions about whether the court had jurisdiction to hear the appeal now, challenging the idea that Trump could appeal immunity before a trial and conviction took place. The argument was offered in one of the amicus briefs. You’ll recall we’ve discussed it as well, and that I had dismissed the argument, because the Special Counsel had dismissed it, saying it was wrong and Trump was entitled to appeal.

Judge Childs seemed to see it differently and may well write to this issue in her opinion. But Pearce confirmed the government’s view, in response to her questions, that Trump was entitled to take the appeal at this point in the case. Judge Pan asked why he wasn’t willing to argue for dismissal on this basis, asking, “Doesn’t that serve your interests?” Pearce responded that the government’s interest was in doing justice, and they were obligated to take a position that was legally correct “even if it hurts us.” In sharp contrast to some of the arguments made by Sauer, Pearce offered, “We have to do what we think the law says.”

In one interesting stretch of questioning, Judge Pan forced Sauer to concede that there is not complete immunity, even for “official acts” by a president. Sauer had been arguing presidents were completely immune and Judge Pan had been pushing him on just how broadly that could sweep, for instance, that since communicating with foreign governments was part of a president’s job, could he claim immunity for conversations in which he sold government secrets. Sauer responded that a president in that situation could be prosecuted following impeachment and conviction.

Judge Pan moved in for the kill.

Pan: So, therefore, he’s not completely immune, because you concede he can be prosecuted under certain circumstances. Isn’t that also a concession a president can be prosecuted for an official act, because they can be impeached for an official act?

She asked Sauer if his concession didn’t narrow the issues before the court to simply deciding whether a president can be prosecuted without first being impeached. She pointed out, “All of your other arguments seem to fall away … if you concede a president can be prosecuted under some circumstances.”

This position may well drive the court’s opinion, or play prominently in a concurrence by Judge Pan if she can’t attract the other judges to it. It’s an elegantly simple argument. Trump concedes there is no absolute immunity, but sets up a condition for prosecution for official acts: there must be impeachment and conviction first. The court accepts the concession, that there is no absolute immunity. However, it rejects the “impeachment first” argument, a non-serious argument that isn’t grounded in either the language of the Constitution or case law. The panel seemed to think it had so little merit that it didn’t seriously press the government on this point during its turn. Pearce told the court, that they “might think” that if the Founding Fathers intended to preclude criminal prosecution of a former president who hadn’t been impeached and convicted, “you might find it in history from the convention.” Of course, it isn’t there.

By the conclusion of his exchange with the court on this point, Sauer seemed flustered, unable to explain why Judge Pan’s analysis was wrong. The best he had to offer was that the Founding Fathers were concerned about the possibility of politically motivated prosecutions, so they would have limited prosecution of presidents. Pan explained her reasoning to him: once he conceded there isn’t unlimited absolute immunity, the argument isn’t that his client can’t be prosecuted, it’s just about when his client can be prosecuted. You’re arguing there is absolutely immunity, she told him, that the judiciary can never sit in judgment on a president. But you’re conceding that’s not true.

After that exchange, at the close of his argument, and in a comment that hasn’t drawn much attention, Sauer asked the panel to “stay the mandate” so he could “seek further review” if he loses. That’s the delay argument. Sauer wants to take as much time as possible to push this appeal further—and continue to push off the trial date in this case, regardless of whether he wins or loses this motion. He doesn’t want the panel to limit the amount of time he has, which could end up being months before he has to file a certiorari petition to the Supreme Court. Not much audible reaction from the panel to give us a sense of whether they’re inclined to play along.

The court took a decidedly different tack in questioning the government. Judge Henderson asked Pearce how they could write an opinion that would keep the floodgates of political prosecutions from opening. Pearce fell back on traditional rule of law principles. He argued that the legal process isn’t political and that there are built-in safeguards that protect against political prosecutions, including prosecutors who follow strict codes of conduct, grand juries who must approve charges, trial juries who must agree that the government has proven a defendant guilty beyond a reasonable doubt and courts that can review convictions.

Pearce also argued that the floodgates argument presupposes that government no longer works like it’s supposed to, that it’s populated by actors who would engage in wrongful, purely political conduct. He said there was no reason to assume the future would be full of vindictive “tit-for-tat prosecutions.” Perhaps he has not read Trump’s 2025 plan, but he certainly underscored the panel’s concern about crafting a rule that works in this case and is protective for the future. Pearce told the court that this case had to be prosecuted because of the unprecedented nature of the charges against Trump, who conspired with private individuals and used the levers of power to corrupt the election system. His argument, that this is a novel, important case that required prosecution and that lesser cases will not be brought is an optimistic view of a future we all hope is in store for us.

That’s a lot. And of course, there was more in-the-weeds legal argumentation that will undoubtedly resurface in the opinion. But the takeaway seemed to be that this argument was not about whether Trump would lose, it was about how he will lose. That is the panel’s job to sort out.

One final thought. Because this is a federal appellate court, we were able to listen in. Audio clips are circulating online, on TV, and on social media for those who couldn’t listen to the entire argument. This sort of transparency makes it possible for people to understand the arguments; what was said and what wasn’t said. If ever there was an argument for cameras in the courtroom when Trump goes to trial, it’s this proceeding we were able to hear today.

We’re in this together,

Joyce