Could an American president use the military to stage a targeted assassination of a political rival, and get away with it?
According to former President Donald Trump’s lawyer, the answer should be, effectively: Yeah, sure, so long as Congress doesn’t get too upset about it.
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Trump’s attorney claimed that the president enjoys such sweeping criminal immunity that a sitting commander in chief could literally order a hit on another U.S. politician and afterwards be above the law, so long as the Congress fails to impeach and convict that president using the standard political procedure.
Unless the president is impeached first, that assassination would not be a prosecutable crime, the lawyer, D. John Sauer, told a three judge panel in the Washington D.C. Circuit Court of Appeals during a hearing about Trump’s claim of presidential immunity on Tuesday.
The exchange arose when Judge Florence Pan pushed Sauer over Trump’s claim that a president can’t be prosecuted for “official acts” as president without first being impeached and removed from office.
“Could a president order S.E.A.L. Team Six to assassinate a political rival?” Judge Pan asked. “That’s an official act, an order to S.E.A.L. Team Six.”
Sauer began to say: “He would have to be, and would speedily be, impeached and convicted before the criminal prosecution…”
Judge Pan cut him off.
“But if he weren’t, there would be no criminal prosecution, no liability for that?”
Sauer started talking in vague, evasive terms about the concerns of the Founding Fathers. But Judge Pan wasn’t having it. She cut him off again.
“I asked you a yes or no question,” she said, before repeating the hypothetical about a president ordering S.E.A.L Team 6 to gun down a political opponent in broad daylight.
“If he were impeached and convicted first,” the Trump lawyer said.
“So your answer is no,” the judge asked.
“My answer is a qualified yes,” the Trump attorney said.
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That qualification, of course, is a very important one. It means that Trump is effecting arguing, through his lawyer, that in order for a president to be prosecuted for ordering a domestic political assassination, Congress would first have to do something that it’s never done before: Boot a president out of the White House.
No American president has ever been removed from office through impeachment. Three presidents have been impeached by the House of Representatives: Richard Nixon, Bill Clinton and Trump (twice).
But Nixon resigned before the Senate could convict him with the necessary two-thirds vote. Clinton and Trump were both acquitted with (mostly) party-line votes.
Trump’s lawyer essentially argued that the president has the unassailable legal right to order the military to gun down any American he wants—so long as at least 35 senators all agree not to get too huffy about it.
