Trump’s Lawyers Failed a Dangerous Thought Experiment
Donald Trump has always displayed authoritarian impulses, but the Trump who is running for president now is not the same as the Trump who ran in 2016. He is more ruthless, more dangerous, and more authoritarian than before. And today in a federal court in Washington, D.C., with Trump present, his attorneys offered perhaps the boldest assertion of power that any major American candidate has ever made.
In a hearing before the D.C. Circuit Court, the former president’s lawyers argued that he should be immune from criminal prosecution for his role in the attempt to steal the 2020 presidential election. This argument has an obvious flaw: It implies that the president is above the law. Such a blunt rejection of the Constitution and the basic concept of American democracy is too much even for Trump to assert—publicly, at least—so his lawyers have proposed a theory. They say that he can’t be criminally prosecuted unless he is first impeached and convicted by Congress.
This argument is no less dangerous, as a hypothetical asked in court demonstrated in chilling terms. Judge Florence Pan asked Trump’s attorney, D. John Sauer, if “a president who ordered SEAL Team 6 to assassinate a political rival” could be criminally prosecuted. Sauer tried to hem and haw his way through an answer but ultimately stated that such a president couldn’t be prosecuted unless he was first impeached, convicted, and removed by Congress.
[From the January/February 2024 issue: Trump isn’t bluffing]
“But if he weren’t, there would be no criminal prosecution, no criminal liability for that?” Pan pressed. Sauer had no choice but to agree, because acknowledging any exceptions would have blown a hole in his argument.
Eight years ago, in January 2016, Trump marveled at his supporters’ devotion. “I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, okay?” he said at a rally in Iowa. “It’s, like, incredible.” The statement was astonishing, but it could also have been interpreted as something of a joke. In retrospect, it was an early step in his realization that few bounds might exist on his behavior.
His lawyers’ comments now are a logical, if scary, extension of that remark. Back then, Trump was musing about commonplace murder. Now the topic is the assassination of a political rival, using the force of the U.S. military. But both proceed from the assumption of unwavering support from Trump’s backers.
The Framers of the Constitution may well have assumed that any president would be impeached and convicted quickly if he (for example) ordered an act of political murder. That assumption no longer holds, though. The very criminal case in question concerns an exceptional circumstance: Trump’s attempt to steal the election, as alleged by Special Counsel Jack Smith in a lengthy indictment. The House did impeach Trump, and the Senate tried him, but it failed to win the two-thirds majority needed for a conviction.
In effect, Trump has realized that, just as none of his voters would desert him over murdering a man on Fifth Avenue, nothing he could do would be so bad that congressional Republicans would abandon him. He doesn’t need a majority, either. Under the argument his lawyers made in court today, all Trump needs is 34 Republicans who will vote not to convict, and that’s sufficient to guarantee he can act with impunity. Sauer told Pan, “In these exceptional cases, you’d expect a speedy impeachment and conviction.” But who would really expect that anymore? Not Trump, and not any other prudent observer either.
[David A. Graham: Trump says he’ll be a dictator on “day one”]
What lawyers say in court is not the same as what politicians say or will do in office, but no normal politician would allow such an argument to be made on his behalf, especially while sitting in the courtroom. Trump did because his mentality is victory at all costs—winning the present legal case, but also anything else. Trump has already made clear that he wishes to punish his political opponents, and once he discovers the possibility of some power, he is seldom able to resist trying it. Today’s legal argument could very well be next year’s exercise of presidential power.