Trump’s boldest argument yet: immunity from prosecution for murder charges

Eight years ago, just before the Iowa caucuses, Donald J. Trump crowed about his invulnerability.

“I could stand in the middle of Fifth Avenue and shoot someone, and I wouldn’t lose any voters, okay?” he said. “It is unbelievable.”

On Tuesday, a lawyer for Mr. Trump said during an oral argument before the federal appeals court, held the week before this year’s caucuses, that the Constitution says essentially the same thing.

It took a few questions Judge Florence Y. Pan to track down the attorney, D. John Sauer. But he ultimately made the stunning claim that former presidents are absolutely immune from prosecution, even for assassinations they ordered while in office.

“I asked you a yes-or-no question,” Judge Pan said. “Would a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, be subject to criminal charges?”

Mr. Sauer said his answer was a “qualified yes,” by which he meant no. He explained that prosecution would only be allowed if the president were first impeached by the House of Representatives and convicted by the Senate.

Impeachments of presidents are rare: there have been four in the history of the Republic, including two from Mr. Trump. The number of convictions that require a two-thirds majority of the Senate: zero.

In any case, a member of Congress might be reluctant to vote against a president willing to order the military to kill his opponents.

Mr. Sauer’s response immediately went down in the annals of frank concessions that helped doom a feud. It was reminiscent of a government lawyer’s statement at the first argument in the 2009 Citizens United campaign finance case that Congress could theoretically ban books urging the election of political candidates.

“That’s pretty incredible,” Judge Samuel A. Alito Jr. said. at the time. When the case was reheard, Solicitor General Elena Kagan, now a member of the Supreme Court, changed the administration’s position but still lost by a 5-4 vote.

Mr. Sauer’s statement also more directly echoed a 2019 federal appeals court argument about whether Mr. Trump could block prosecutors from obtaining his tax and business records. He claimed that he was immune not only from prosecution but also from criminal investigation as long as he was president.

At the time, Judge Denny Chin pressed William S. Consovoy, a lawyer for Mr. Trump, with questions about his client’s statement that he could shoot someone on Fifth Avenue without losing political support.

“Couldn’t the local authorities investigate?” Judge Chin asked, adding: “Nothing could be done? Is that your position?”

“That’s right,” said Mr. Consovoy, who died last year. “That’s right.”

This headline followed: “If Trump Shoots Someone on 5th Avenue, Does He Have Immunity? His lawyer says yes.”

Mr. Trump’s overall strategy is not new. He has long sought expanded immunity, and he has repeatedly invoked impeachment as the main remedy for presidential misconduct.

But Mr. Sauer reads what lawyers say on Tuesday impeachment clause did not impress legal scholars.

The provision reads: “Judgment in cases of impeachment shall not extend beyond the removal from office and the disqualification to hold and enjoy any office of honor, trust, or profit under the United States: But the party convicted shall shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”

It is clear that “the convicted party” in the Senate can still face criminal charges. But Mr. Sauer argued that the clause implied two other things: that a conviction in the Senate is always required before a criminal prosecution, and that an acquittal in the Senate prohibits such a prosecution.

Abner S. Greenea law professor at Fordham University, said that “the impeachment arguments are certainly losers — both that the president should only be criminally prosecuted if impeached and convicted, and that the president should not be criminally prosecuted if impeached and not convicted.”

Trump was acquitted during his second impeachment trial when only 57 senators voted against him, ten short of the two-thirds majority needed to convict.

There are reasons to doubt whether this acquittal will preclude criminal prosecution. First, Mr. Trump was impeached for incitement of insurrection, a claim notably absent from the federal indictment in the election interference case.

Second, many senators voted to acquit Mr. Trump during the impeachment trial at least in part because he was no longer in office and thus, they said, not under the Senate’s jurisdiction.

Third, Trump’s own lawyers argued during the impeachment trial that criminal charges were the appropriate response to their client’s conduct.

Given Mr. Sauer’s answer about the killing and the gaps in his argument based on the impeachment clause, Mr. Trump is likely to lose before the three-judge panel. But he has won an important interim victory. The court proceedings have been suspended during the appeal and the planned start of the trial on March 4 may be delayed.

Should Mr. Trump lose before the three-judge panel, he could ask the full appeals court, the U.S. Court of Appeals for the District of Columbia Circuit, to hear the case again. It is unlikely that she will agree to this, but a decision on the request may take some time.

After that, Mr. Trump would most likely ask the U.S. Supreme Court to hear the case. Last month, the justices rejected an unusual request from Jack Smith, the special prosecutor, to skip the appeals court and immediately review the case.

But that’s no reason to think the Supreme Court won’t want to have the final say on an issue as important as the scope of presidential immunity. Even if the court acts very quickly — as has happened so far on the separate question of Mr. Trump’s eligibility to hold office under the 14th Amendment — it could take several weeks to reach a decision.

In other words, time is Trump’s friend. If he can delay the case until after the November election and win the election, he could try to pardon himself or order the Justice Department to drop the case against him. Such moves could, in turn, bring closure — by fueling calls for a third impeachment.