Jan. 9 (UPI) — A D.C. Circuit Court of Appeals judge asked Donald Trump’s attorney Tuesday whether a president can order the assassination of a political opponent and still be shielded from prosecution.
The question was asked in a hearing over the former president’s immunity claim in the election interference case in Washington. Trump’s attorney John Sauer argued that a president must be impeached and convicted before he can be prosecuted.
Trump, who is campaigning for the Republican nomination for re-election, attended the hearing at the E. Barrett Prettyman federal courthouse. He did not speak during the proceeding. The hearing began at 9:30 a.m. EST, and lasted about 75 minutes.
Judge Florence Pan continued to rephrase the question, seeking a yes or no response.
“Could a president order SEAL Team 6 to assassinate a political rival?” she asked. “That’s an official act, an order to SEAL Team 6.”
Sauer continued to qualify his response.
“He would have to be speedily impeached and convicted before the criminal conviction,” Sauer responded.
Pan asserted that Sauer’s response was no, while Sauer argued that he delivered a “qualified yes,” but impeachment and conviction must happen before the president can be prosecuted criminally.
Pan and the two other judges on the panel, Karen L. Henderson, J. Michelle Childs, tasked Sauer with explaining where the limits of presidential immunity are and whether they apply to Trump’s alleged actions on and leading up to Jan. 6, 2021.
Presidential immunity protects sitting presidents from prosecution when performing the official duties required of the office.
Sauer argued that Trump has broad presidential immunity for the actions described in his indictment because he was president at the time and they were part of his official duties. Pan called Sauer’s argument a concession that presidents can be criminally prosecuted under certain circumstances, but Sauer disagreed.
“The president’s actions are never examinable by the courts,” Sauer said, citing landmark U.S. Supreme Court case Marbury vs. Madison.
Pan then pointed to an inconsistency in Trump’s argument, citing a filing by his attorneys in the case Trump vs. Vance. Trump’s attorneys said in a filing that a president has absolute immunity that “would expire when the president leaves office.”
Sauer briefly struggled to respond before saying that because the crimes alleged in Trump’s indictment occurred while he was in office, presidential immunity applies.
Henderson called Sauer’s arguments “paradoxical.”
“It’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” she said.
Sauer said that allowing a president to be prosecuted for official acts would open “Pandora’s box.” He asked if President George W. Bush could then be prosecuted for going to war with Iraq under false pretenses.
Attorney James Pearce argued on behalf of the special counsel that granting presidential immunity to Trump in this case could usher in a “frightening future.” He also remarked on the unprecedented nature of the proceedings facing Trump.
“Never before has there been allegations that a sitting president has, with private individuals and with the levers of power, sought to fundamentally subvert the democratic republic and electoral system,” Pearce said. “And frankly, if that fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.
“That is a frightening future,” he added.
In Sauer’s response, he said what Pearce described is the system under which the United States has operated since its inception.
“That’s not a frightening future. That’s our republic,” he said. “What he is forecasting is a situation where the floodgates will be open. We are in a situation where we have the prosecution of the chief political opponent who is winning in every poll in the eventual election upcoming next year and is being prosecuted by the administration that he is seeking to replace.”
U.S. District Judge Tanya Chutkan denied Trump’s immunity claim last month before pausing the proceedings against him in Washington while the issue is sorted out.
The trial is scheduled to begin on March 4, though the timeliness of the appeals court’s decision may factor in. It is expected that regardless of the outcome in the court of appeals, a challenge will be elevated to the U.S. Supreme Court.
Trump briefly spoke to the media after Tuesday’s hearing, calling it “very unfair when an opponent is prosecuted by the DOJ, by Biden’s DOJ.”
“As a president, you have to have immunity. It’s very simple,” Trump said. “I did nothing wrong. Absolutely nothing wrong. I’m working for the country.”
Trump went on to claim that he found “tremendous voter fraud,” an unfounded claim he has repeated since losing the 2020 election.
