Former President Donald Trump’s attorney on Thursday argued that a president could order the assassination of his political rival and stage a military coup without being prosecuted for it.
Jack Sauer, Trump’s lawyer, made the “absolute immunity” argument in a Supreme Court hearing in the Department of Justice election interference case against the former president. Trump’s team has repeatedly claimed that the ex-president can’t be prosecuted for “official acts” he did while in office.
Supreme Court Justice Sonia Sotomayor asked Sauer, “If the president decides that his rival is a corrupt person and he orders the military to assassinate him, is that within his official acts to which he has immunity?”
“That could well be an official act,” Sauer responded.
Sotomayor seemed taken aback at that line of reasoning.
“I am having a hard time thinking that creating false documents, that submitting false documents, that ordering the assassination of a rival, that accepting a bribe and countless other laws that could be broken for personal gain, that anyone would say that it would be reasonable for a president or any public official to do that,” Sotomayor said, including other examples from Trump’s lawyer’s argument that could logically lead to no prosecution.
Justice Elena Kagan offered a few more hypotheticals to Trump’s attorney, including if a president would be immune from prosecution if they sold the country’s nuclear secrets to a foreign power.
“Likely not immune,” Sauer said, before adding a qualifier: “Now, if it’s structured as an official act, he’d have to be impeached and convicted first.”
“How about if the president orders the military to stage a coup?” Kagan asked.
“I think it would depend on the circumstances,” Sauer said.
Justice Ketanji Brown Jackson, another liberal on the court, said Trump’s reasoning could mean presidents in the future could commit all sorts of crimes.
“I’m trying to understand what the disincentive is from turning the Oval Office into the seat of criminal activity in this country,” Jackson said. “If the potential for criminal liability is taken off the table, wouldn’t there be a significant risk future presidents would be emboldened to commit crimes in office?”