January 6, 2021: Insurrection or “normal tourist” visitation?

[Seacoaster(1)]

Article detailing some of the evidence that will confront Trump:

https://slate.com/news-and-politics/202 ... ction.html

"On Sunday, ABC News reported on new evidence now in the hands of special counsel Jack Smith that signals a turning point for the prosecution against Donald Trump. If and when the trial goes forward after Trump’s immunity appeals wrap up, the new evidence will be kryptonite to Trump’s hopes for avoiding a conviction.

Progress toward the trial is currently paused during Trump’s appeal to the U.S. Court of Appeals for the District of Columbia Circuit. Experts like Norm Eisen expect that Trump’s weak appellate claims to immunity and purported protection from double jeopardy are likely to be resolved against him well in time for a trial before the November election.

ABC’s latest reporting describes Smith’s interviews with Trump’s close aides, like Dan Scavino, Trump’s communications guru. The interviews put firmly on record Trump’s statements during the three hours on Jan. 6 when he refused like a petulant child to ask the Capitol invaders to go home.

The powerful reported testimony goes straight to the crucial issue in the case: Did Trump criminally intend to overturn the 2020 election? His newly reported statements would conclusively establish for any reasonable juror that Trump wanted the siege to succeed in stopping Congress from certifying President Joe Biden’s election.

We already knew about Trump resisting the entreaties of aides, family, and political allies who begged him, once violence began, to immediately call off the dogs of insurrection. He fiddled for 187 minutes while Rome burned.

So what’s new about the evidence that ABC reported Sunday?

Trump’s reported statements are loaded with cruelty, self-interest, and abandonment of allies. It becomes indisputable that he was using his most violent followers to try to override the voters’ will and keep himself in power.

The statements that ABC reported are new, in part, because witnesses like Scavino and Mark Meadows, the Trump White House chief of staff, didn’t speak with the House Jan. 6 committee.

Scavino still works for Trump’s campaign. Per ABC, he’s been so close and “so supportive of Trump over the years that … in 2020 … Trump joked that … Scavino was ‘the most powerful man in politics.’ ” That will make his testimony especially compelling.

Scavino has now reportedly confirmed something vital to Smith—that it was Trump and Trump alone who posted his infamous 2:24 p.m. Jan. 6 tweet: “Mike Pence didn’t have the courage to do what should have been done.” The Wall Street Journal has called that tweet “the critical moment” of the siege because it poured truckloads of kerosene onto an already roaring fire inside the Capitol.

Scavino reportedly told Smith’s team that Trump only posted the tweet after Scavino left him by himself in the White House dining room, Scavino having failed “to persuade Trump to release a calming statement.” After the posting, multiple aides returned to tell Trump that the tweet was “not what we need.”

Trump reportedly responded, with no concern for the tweet’s inciting effect: “But it’s true.” As Nick Luna, now a former Trump aide, reportedly told investigators, Trump “showed he was ‘capable of allowing harm to come to one of his closest allies’ at the time.” This was Luna’s assessment of Trump’s response to the news that Mike Pence had to be evacuated from the Capitol, which ABC reported was “So what?”

ABC also reported that Meadows filled in evidentiary gaps about information we had from public reporting. Meadows reportedly confirmed for Smith that he was present to hear Trump tell then–House Minority Leader Kevin McCarthy, “I guess these people are more upset about the election than you are.”

McCarthy, too, had refused to testify before the House Jan. 6 committee. He has never publicly acknowledged that Trump spoke those words to him on Jan. 6, and we don’t know whether he’s told Smith about hearing them.

Meadows having done so also corroborates bombshell testimony that the House Jan. 6 committee received from Cassidy Hutchinson, Meadows’ aide—that during the early moments of violence on Jan. 6, she heard Meadows tell Pat Cipollone, the White House counsel, Trump “didn’t want to do anything” to stop it.

Finally, ABC reports notable evidence about Trump’s 6 p.m. tweet after the violence ended: “These are the things and events that happen when a sacred landslide election victory is … viciously stripped away from great patriots…. Remember this day for forever!”

ABC reported that Trump posted the message despite Luna’s warning “that it made him sound ‘culpable’ for the violence, perhaps even as if he may have somehow been involved in ‘directing’ it.” Thus, he was on notice from a trusted ally that the message conveyed his criminal responsibility for the violence, and he published it anyway, demonstrating that it was no innocent mistake.

On Sunday, Trump’s team downplayed the significance of ABC’s blockbuster. A campaign spokesman said:

"Media fascination with second-hand hearsay shows just how weak the Witch-Hunt against President Trump is.”

This hearsay claim is 100 percent wrong. What witnesses told Trump and what he told them are not “hearsay” because the statements will not be offered in court to prove the truth of what they assert. Only statements offered for that purpose meet the legal definition of hearsay and are barred from being heard by jurors in criminal proceedings.

Take for example, Trump’s assertion to McCarthy that the Capitol invaders were “more concerned about the election” than he was. Smith would not offer that statement to prove its truth. Rather, Smith would offer the evidence to prove Trump’ criminal state of mind, a necessary element of every offense. Instead, the statement will be introduced to show that Trump wanted the insurrection to continue and succeed in blocking the election certification.

The introduction of such testimony from Trump’s closest aides establishes his criminal intent and should seal his fate in the trial to come."

I wonder if Kevin McCarthys departure from Congress is due in part to forthcoming news of testimony against 2xIMPOTUS o d?

Maybe; interesting thought. But what I notice is Scavino, Trump's longtime toadying communications director, confirms something pretty important: that it was Trump and Trump alone who posted his infamous tweet at 2:24 p.m. on January 6: "Mike Pence didn’t have the courage to do what should have been done." He knew that there was a riot, that people had breached the House chamber and were wandering around the Capitol, that the House and Senate proceedings had been delayed and diverted...and his response was, essentially, "well, if Mike had done what I asked him to do, he wouldn't be at risk now." Remarkable.

[njbill]

No surprise, Trump is going to lose this case. So far, the Bush appointee has done little to no questioning. So it’s not clear where she stands. But the two Biden appointees are clearly not buying Trump’s argument. Of course, we are still only hearing from the appellant.

Interestingly, and if I am Trump's lawyer, a real concern, Judge Henderson, who is a widely respected "conservative," and maybe a Reagan or Bush appointee, notes that she thinks it is “paradoxical to say that his constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate criminal law.”

That sure was a succinct way to put it.

How ironic for Trump, who is sitting in the courtroom, to be judged by three women, including a Black woman and an Asian American woman.

[Seacoaster(1)]

Bill, what do you make to the "floodgate" suggestion (which is the word Henderson just used for the "Republic shattering" likeihood mentioned by Trump's counsel)?

[njbill]

Not sure. After the argument is over, I’ll try to go back and listen to that part again.

[njbill]

Bill, what do you make to the "floodgate" suggestion (which is the word Henderson just used for the "Republic shattering" likeihood mentioned by Trump's counsel)?

Perhaps it was simply a good moot court question. I don’t read the question as an indication that Henderson will find there is absolute immunity. Wouldn’t surprise me if she wrote a concurring opinion, but that of course depends on what the majority says.

I thought counsel’s answer was good. Prosecutors are bound by ethical rules and the law. Grand juries and petit juries decide whether crimes have been committed, and whether defendants should be found guilty. Judges have an important role in ensuring that the rule of law applies and that truly vindictive prosecutions aren’t permitted. So the system has several built-in safeguards to ensure that the floodgates are not opened and political adversaries prosecute their predecessors willy-nilly.

[Seacoaster(1)]

Bill, what do you make to the "floodgate" suggestion (which is the word Henderson just used for the "Republic shattering" likeihood mentioned by Trump's counsel)?

Perhaps it was simply a good moot court question. I don’t read the question as an indication that Henderson will find there is absolute immunity. Wouldn’t surprise me if she wrote a concurring opinion, but that of course depends on what the majority says.

I thought counsel’s answer was good. Prosecutors are bound by ethical rules and the law. Grand juries and petit juries decide whether crimes have been committed, and whether defendants should be found guilty. Judges have an important role in ensuring that the rule of law applies and that truly vindictive prosecutions aren’t permitted. So the system has several built-in safeguards to ensure that the floodgates are not opened and political adversaries prosecute their predecessors willy-nilly.

Agree with everything you say.

[njbill]

The reporting is that Trump was sitting at counsels table and was passing notes to his attorney during the argument. I can assure you, lawyers just LOVE it when their clients distract them during a trial or an appellate argument by passing them notes.

An eagle eyed reporter in the courtroom said one of the notes read, “Tell them to watch the God Made Trump video.”

[CU88a]

The reporting is that Trump was sitting at counsels table and was passing notes to his attorney during the argument. I can assure you, lawyers just LOVE it when their clients distract them during a trial or an appellate argument by passing them notes.

An eagle eyed reporter in the courtroom said one of the notes read, “Tell them to watch the God Made Trump video.”

[MDlaxfan76]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

[cradleandshoot]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

You'll stop him because the Republican party listens to you.

[MDlaxfan76]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

You'll stop him because the Republican party listens to you.

Enough of them need to "listen" and think about the implications that Trump presents to ensure he is soundly defeated in November. They could/should do it right now in the primaries, but I doubt there's a sufficient number. in the primary process..but enough in November...

But note, my hypothetical involves him somehow regaining power, (god forbid)..or any other would be dictator, ever. That's the point.

The signal should be clear and unambiguous that Presidents are not above the law, that accountability through the justice system should be expected.

And the political signal to the GOP should be that Trump/MAGA extremism is a total loser.

Reform yourselves to a party that can be respected and trusted with governance.

[CU88a]

Thoughts on yesterday from Joyce Vance of Civil Discourse:

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 prosecution 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 “breast-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.

[MDlaxfan76]

one little note, the Bush appointee, Henderson, was first put on the bench by Reagan and it was HW who put her on this court. She's two years older than Trump. Been around, seen a lot.

[PizzaSnake]

Thoughts on yesterday from Joyce Vance of Civil Discourse:

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 prosecution 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 “breast-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.

“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.””


Clearly Sauer not skilled in rhetoric. Do these people exist merely to serve as shameless charlatans willing to defend ridiculously partisan positions?

I wouldn’t hire him to contest a parking ticket.

[cradleandshoot]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

You'll stop him because the Republican party listens to you.

Enough of them need to "listen" and think about the implications that Trump presents to ensure he is soundly defeated in November. They could/should do it right now in the primaries, but I doubt there's a sufficient number. in the primary process..but enough in November...

But note, my hypothetical involves him somehow regaining power, (god forbid)..or any other would be dictator, ever. That's the point.

The signal should be clear and unambiguous that Presidents are not above the law, that accountability through the justice system should be expected.

And the political signal to the GOP should be that Trump/MAGA extremism is a total loser.

Reform yourselves to a party that can be respected and trusted with governance.

I'm guessing that 74 million Republicans voted for trump in 2020. Im guessing that number may increase in 2024.

[njbill]

I think it will decrease. I can’t imagine anyone who didn’t vote for Trump in 2020 will vote for him in 2024.

I’ve said this before, and sure hope I don’t have to eat my words, but Trump will not win the 2024 election. In fact, while it still looks likely he will be the nominee, I don’t think it is quite the certainty it once was. Of course, he is incapable of doing this, but he would be wise to suck up to Haley, who has said she will pardon him. If he keeps pissing her off, as he is wont to do, she may change her mind if she is elected.

[cradleandshoot]

I think it will decrease. I can’t imagine anyone who didn’t vote for Trump in 2020 will vote for him in 2024.

I’ve said this before, and sure hope I don’t have to eat my words, but Trump will not win the 2024 election. In fact, while it still looks likely he will be the nominee, I don’t think it is quite the certainty it once was. Of course, he is incapable of doing this, but he would be wise to suck up to Haley, who has said she will pardon him. If he keeps pissing her off, as he is wont to do, she may change her mind if she is elected.

I hope I don't have to eat my words either. Trump vs Biden is the ultimate lose/lose scenario for the American people. Both candidates are incompetent and proven liars with no integrity whatsoever. God bless America.... We are now on the cusp yet again of electing the most incompetent candidate since 2020. I only wonder who my 3rd party candidate will be? Y'all can take trump and Biden and stick them both up your ass...

[MDlaxfan76]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

You'll stop him because the Republican party listens to you.

Enough of them need to "listen" and think about the implications that Trump presents to ensure he is soundly defeated in November. They could/should do it right now in the primaries, but I doubt there's a sufficient number. in the primary process..but enough in November...

But note, my hypothetical involves him somehow regaining power, (god forbid)..or any other would be dictator, ever. That's the point.

The signal should be clear and unambiguous that Presidents are not above the law, that accountability through the justice system should be expected.

And the political signal to the GOP should be that Trump/MAGA extremism is a total loser.

Reform yourselves to a party that can be respected and trusted with governance.

I'm guessing that 74 million Republicans voted for trump in 2020. Im guessing that number may increase in 2024.

No, 74 million voters voted for him. That included Independents and a smattering of Dems. Not only Republicans.

81 million voters voted for Biden. That included Independents and those R's appalled by Trump.

We may see both total #'s increase, but as I said, there needs to be enough R's (and I's) who continue to be or are finally now appealed by Trump that they will show up and vote for Biden, even if that means holding their nose.

[MDlaxfan76]

I think it will decrease. I can’t imagine anyone who didn’t vote for Trump in 2020 will vote for him in 2024.

I’ve said this before, and sure hope I don’t have to eat my words, but Trump will not win the 2024 election. In fact, while it still looks likely he will be the nominee, I don’t think it is quite the certainty it once was. Of course, he is incapable of doing this, but he would be wise to suck up to Haley, who has said she will pardon him. If he keeps pissing her off, as he is wont to do, she may change her mind if she is elected.

I hope I don't have to eat my words either. Trump vs Biden is the ultimate lose/lose scenario for the American people. Both candidates are incompetent and proven liars with no integrity whatsoever. God bless America.... We are now on the cusp yet again of electing the most incompetent candidate since 2020. I only wonder who my 3rd party candidate will be? Y'all can take trump and Biden and stick them both up your ass...

You're no loss to either as you don't vote for either party.

[PizzaSnake]

Anyone else listen live to the Trump immunity appeals hearing?

I did and it was fascinating.

It starts at minute 50+ of this Reuters recording: https://www.youtube.com/watch?v=HZVyZCQOLe0

The first 50 minutes are nothing, just view from outside courtroom.
The hearing itself was just an hour and 15.

The appellant (Trump) has an automatic 20 minutes before the 3 judges. Then the Special Counsel for 20, then 5 minutes for rebuttal with the appellant. The judges can and do interrupt each attorney frequently in appellant processes, and they can extend the time as long as they have further questions or the lawyer has something not yet covered. In some instances, the exact same process 0f 20, 20, 5 can take over 3 hours, as it did in the same courtroom for the appeal regarding the gag order.

Pretty darn starkly obvious.

What becomes rapidly clear is that Trump is arguing that a President should be able to do absolutely anything, including ordering murder, during their tenure in office, and can only be prosecuted thereafter for that crime, after and only if, the Congress has both impeached and convicted that President for that same crime. No impeachment process, or "acquittal" in the Senate, no prosecution is possible. So, if the evidence of the crime committed when in office is not developed until after the President has left office, whether through resignation or end of term, and/or the Congress doesn't take it up, or the Senate fails to convict for partisan political reasons, (or fear), the justice system cannot act.

This also means that the President can order the killing of all of his opponents in the Senate...and thus avoid impeachment. And order the killing of judges who would rule against him.

Put aside for the moment that this is a losing argument, think about what Trump is actually saying he wants to do, has promised to do, were he to be elected...who stops him if he is elected???

You'll stop him because the Republican party listens to you.

Enough of them need to "listen" and think about the implications that Trump presents to ensure he is soundly defeated in November. They could/should do it right now in the primaries, but I doubt there's a sufficient number. in the primary process..but enough in November...

But note, my hypothetical involves him somehow regaining power, (god forbid)..or any other would be dictator, ever. That's the point.

The signal should be clear and unambiguous that Presidents are not above the law, that accountability through the justice system should be expected.

And the political signal to the GOP should be that Trump/MAGA extremism is a total loser.

Reform yourselves to a party that can be respected and trusted with governance.

I'm guessing that 74 million Republicans voted for trump in 2020. Im guessing that number may increase in 2024.

No, 74 million voters voted for him. That included Independents and a smattering of Dems. Not only Republicans.

81 million voters voted for Biden. That included Independents and those R's appalled by Trump.

We may see both total #'s increase, but as I said, there needs to be enough R's (and I's) who continue to be or are finally now appealed by Trump that they will show up and vote for Biden, even if that means holding their nose.

My mother used that phrase a lot re elections. She didn’t tolerate fools but recognized the strictures of our duopoly.