On Monday, all three judges on a federal appeals court expressed deep skepticism regarding “immunity” arguments from a lawyer for former President Donald Trump, who is seeking to have federal charges dropped in the case involving his attempt to overturn the results of the 2020 presidential election.
Although defendants typically do not attend appellate court hearings, as their lawyers are making arguments about deeper constitutional matters, Trump himself made an appearance at the hearing.
Trump’s lawyer, John Sauer, made a forceful but deeply flawed push for the idea that former presidents should have absolute presidential immunity for actions they performed in office, even if those actions were criminal. In order to face accountability of any kind, Sauer argued, a president must first be impeached by the House of Representatives and indicted by two-thirds of the Senate.
Judge Karen LeCraft, one of the three judges Sauer was arguing before, questioned that belief, asking how a former president could be free from scrutiny of any kind after they left the White House.
“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” LeCraft said to Sauer.
Judge Florence Pan was also doubtful of Sauer’s assertions. She posed a test to him — could former presidents be free from accountability for selling pardons, for instance, if they weren’t impeached for doing so?
Sauer responded that “as long as it’s an official act,” an ex-president couldn’t be criminally charged for using their office in such a manner.
Pan continued with her thought experiment, inquiring whether presidents could be immune from prosecution if they assassinated political opponents.
“Could a president order SEAL Team Six to assassinate a political rival? That’s an official act: an order to SEAL Team Six,” she noted.
With Trump sitting by his side, Sauer continued to press forward with his defense. “He would have to be, and would, speedily be impeached and convicted before the criminal prosecution,” Sauer said.
DOJ attorney James Pearce couldn’t contain his reaction to Sauer’s arguments, at some points laughing at their absurdity during his own argument phase of the hearing.
“I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described — I mean, what kind of world are we living in?” Pearce asked.
Stifling laughter during his statement, Pearce added:
Just to just amplify the point, it would mean that if a former president engages in assassination, selling pardons, these kinds of things, and then isn’t impeached, and convicted, there is no accountability for that, for that individual. And that is frightening.
Trump spoke to reporters after the hearing, pushing, as he has many times before, unfounded claims that the charges against him — regarding his attempts to usurp the results of the Electoral College and his actions during the attack on the U.S. Capitol building by a mob of his loyalists on January 6, 2021 — were attempts by President Joe Biden to meddle in the 2024 election. Trump also reiterated the claims that his lawyer made during the hearing.
“A president has to have immunity. And the other thing I did nothing wrong,” he said.
Legal experts who observed the hearing on Monday were unconvinced.
“One of Trump’s arguments is that allowing a former President to be prosecuted would open a ‘Pandora’s box’ but the real Pandora’s box is what happens if Trump isn’t held accountable & he tells us every day what’s inside the box: unchecked authoritarianism,” Shanlon Wu, a former federal prosecutor, said on X.
Another former federal prosecutor, Eric Columbus, similarly expressed skepticism over Trump’s claims of immunity, noting that the judges’ stated worries that a president could use his office to kill a political opponent — without being prosecuted afterward if they weren’t impeached and indicted — was deeply troubling.
“Trump’s position is that Biden can kill him if 34 senators approve,” Columbus said.
Former national security attorney Bradley Moss expounded on that point, writing on X:
I want MAGA legal pundits to think through what they are defending here with Trump’s immunity fight: if Trump wins this argument, why would Biden even bother letting Trump make it to election day? He could have him murdered, along with GOP congressional allies, and be immune.
“How would he ever get impeached, let alone convicted, if Biden could just assassinate legislators who would vote in support of that? Do you get how insane this is?” Moss added.
MSNBC host and legal analyst Katie Phang also weighed in on the hearing.
“My prediction: this appellate panel will AFFIRM Judge [Tanya] Chutkan’s ruling to deny Trump’s motions to dismiss” on presidential immunity grounds, Phang wrote.