Open Threads

I listened to the Trump-Special Counsel appeals court proceeding last Tuesday, so I am aware of all the back-and-forth that occurred, but this is the best description / explanation of the significance of some of the questioning that I have seen.

Picking up at the best part, about halfway through the story.  (The Atlantic)

For another, a public official might be acquitted in the Senate for reasons other than the merits of the impeachment charges against him. In fact, that’s exactly what happened at Trump’s second impeachment trial. As Special Counsel Jack Smith noted in his D.C. Circuit brief, “At least 31 of the 43 Senators who voted to acquit the defendant”—Trump—“explained that their decision to do so rested in whole or in part on their agreement with the defendant’s argument that the Senate lacked jurisdiction to try him because he was no longer in office.” Worse yet, as Henderson and Pan later pointed out during the argument, Trump’s own lawyers conceded to the Senate in February 2021 that, even if Trump were not convicted on the impeachment charges, he could still be criminally charged. Oops.

I could go on about the impeachment-judgment clause, and the members of the panel certainly did, but the bottom line is that Trump’s argument about that clause was frivolous, and not worth making. In fact, Sauer, by extending that argument to make a limited concession to Pan’s questioning about whether he was arguing that presidents could never be criminally prosecuted—remember, he said that this could happen if the president is first convicted by the Senate—unwittingly set a nasty trap for himself.

A trap that Pan’s brilliant interrogation shut tight.

The judge wasted no time in drilling into the implications and inconsistencies in Sauer’s position. Pan asked, incredulously, “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act—an order to SEAL Team Six.”

To which Sauer replied, unresponsively, that a president would quickly be impeached and removed for that. This was followed by more unresponsive words from Sauer.

Pan wanted an answer—to the question she had asked.

pan: I asked you a yes-or-no question. Could a president who ordered SEAL Team Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?

sauer: If he were impeached and convicted first—

pan: So your answer is no?

sauer: My answer is a qualified yes.

The filibustering then continued, with Sauer rambling on about Department of Justice Office of Legal Counsel memorandums, James Madison, the abuse of the criminal process. Many words.

Pan interrupted again: “I asked you a series of hypotheticals about criminal actions that could be taken by a president and could be considered official acts and have asked you: Would such a president be subject to criminal prosecution if he’s not impeached and convicted? And your answer, your yes-or-no answer, is no?”

Sauer, realizing he was being cornered somehow, tried to avoid the door closing behind him. But Pan was having none of it. Like the experienced prosecutor she is, she insisted on an answer, and wasn’t going to let go. (If this judging thing doesn’t work out for her, I’d love to see her host Meet the Press someday.)

She and Sauer went around and around on this a few more times. But the damage was done, and Pan’s point was devastatingly made—in essence, that Sauer was arguing out of both sides of his mouth. On the one hand, Sauer argued that the Constitution gave the president absolute immunity for his official acts, lest we have political prosecutions of former presidents. On the other hand, if the United States Congress—a political body if ever there was one—effectively gives permission (by impeaching and convicting), well, then, yes, a president can be prosecuted, and—wait for it—he’s not absolutely immune.

It’s hard to know whether the criminal defendant, sitting at the counsel table, could understand enough of the dialogue to know that his immunity argument had completely collapsed, right then and there. But it had.

Sometimes during appellate arguments, there’s a moment when you know exactly how the court will come out. And this was one. I once had such a moment, fortunately in my favor. My one and only argument before the U.S. Supreme Court was in a case about whether federal securities laws could impose liability for securities transactions occurring abroad. I was arguing in the negative, on behalf of an Australian bank. My opponent was up first, arguing in favor of applying American law. I figured I had the conservative justices, but I was a bit less sure about the more liberal justices.

After some preliminary questions to my adversary about jurisdiction, the Court got to the merits. I’ll never forget it. Justice Ginsburg asked a question that was more like a statement: “This case is Australian plaintiff, Australian defendant, shares purchased in Australia. It has ‘Australia’ written all over it.” I don’t know whether I heard the rest of her question, or my opponent’s answer. But I knew right then and there, before having uttered a word to the Court, that my client had won.

As for the special counsel on Tuesday morning, he, too—like everyone else in the courtroom—knew from Judge Pan’s withering questioning and Sauer’s evasive responses to her that Trump is going to lose. The only question is how quickly it will happen. I have little doubt it will be soon.

By all accounts, we can expect to see the appeals ruling by this coming Friday.  At that point we can expect to know whether the case is being thrown back to Judge Chutkan, and depending on the details of the ruling, it could be “full steam ahead” for the trial sometime in March, or it could mean more appeals and more delays.  To “stay” or not to “stay”, that is the question.  (Or at least one of them.)   En banc hearing request, accepted or denied, Supreme court request, cert accepted or denied, etc.  No matter how it goes, we will know a LOT more a week from now than we do today.

I looked into my personal crystal ball, and I am predicting an appeals court ruling  on Monday or Tuesday, and if it goes the way I hope it will, this could well be another cake-worthy event.

Open thread.

Loser! Cake? (Open Thread)Post + Comments (41)