Dana Verkouteren via AP
A courtroom sketch depicts former President Donald Trump, seated right, listening as his attorney D. John Sauer, standing, speaks before the D.C. Circuit Court of Appeals at the federal courthouse, January 9, 2024, in Washington.
During President Trump’s first impeachment, over threatening to withhold weapons shipments so as to coerce the Ukrainian government into making up a smear story about the Biden family, one of the (fallacious) arguments in his defense was that Trump hadn’t been charged with a crime. “The biggest difference in the Clinton impeachment and this one is that President Clinton committed a crime: perjury,” complained Rep. Steve Chabot (R-OH). “This president isn’t even accused of committing a crime.”
Now in 2024, Trump is actually being prosecuted for attempting to overthrow the government (among other things), and his legal team is advancing the theory that a president can’t commit a crime. On Tuesday, his lawyers faced off with judges from the D.C. Circuit Court, who asked the obvious question: If the president is above the law, what’s to stop him from selling pardons, military secrets, or simply having people assassinated?
Trump’s lawyer John Sauer responded with frantic dissembling about Bill Clinton, but eventually Judge Florence Pan drilled down on the core question. “Could a president order Seal Team Six to assassinate a political rival? That’s an official act, an order to Seal Team Six,” she asked. Sauer came up with a different excuse: “He would have to be … impeached and convicted before the criminal prosecution.” And since Trump was acquitted on both impeachments, he can’t be convicted of any crime.
Hard to imagine a better demonstration of Trump’s catch-22, kettle logic–brained approach to the law. Can’t be impeached because you haven’t been convicted of a crime, and can’t be convicted of a crime because you haven’t been impeached! (That’s a helluva catch, that catch-22!)
There are two noteworthy things here. First, if the Trump presidency proved anything, it’s that the impeachment mechanism (like the process for amending the Constitution) is all but dead, especially for Republicans. All you need is 34 senators, representing as little as 7 percent of the population, and you’re safe. Trump easily cleared that bar after the mob he personally sicced on the Capitol building almost lynched Congress itself; if Republican senators can overwhelmingly vote to acquit the guy who almost got them killed, mere days after the attempt, then they’d have no trouble doing it if he, say, poisoned some pesky dissident with polonium-210.
In this particular situation, they’d be even more helpful given the near certainty that Trump would be threatening to kill them personally for voting the other way, or unsubtly telling his followers to do it. When the Maine secretary of state removed him from her state’s primary ballot, Trump posted her personal information online. Special Counsel Jack Smith and the D.C. judge overseeing his putsch trial were recently swatted by what was almost certainly a Trump supporter.
Indeed, after yesterday’s hearing, Trump threatened violence if he doesn’t win the 2024 election. “I think they feel this is the way they’re going to try and win, and that’s not the way it goes … It’ll be bedlam in the country. It’s a very bad thing. It’s a very bad precedent. As we said, it’s the opening of a Pandora’s box,” he said. Like Jim Crow, Trump’s developing authoritarian order will be enforced by an omnipresent threat of terrorism against anyone who crosses him.
Second, it’s remarkable how confident Trump and his lawyers are that the logic they are putting forth won’t be turned around on him. The president can kill his opponents with impunity, they argue, under the presidency of Joe Biden, who plainly hates Trump’s guts. “Your honor, the president can 360 No Scope my client; it’s perfectly legal so long as 34 of his own party’s senators say so” is a strange argument to make.
Now, I don’t believe that Biden would order the assassination of his top rival, but if I were Trump, I also wouldn’t be falling over myself to make legal arguments as to why that would be super cool and fine, especially as part of a legal Hail Mary strategy that is all but certain to fail. President Obama had American citizens assassinated without trial who did not do a thousandth of the damage to the United States that Trump has done. You never know when a president in that situation might snap.
Once again, we see how Trump has been trained over many years to believe that he cannot possibly experience a real consequence. So long as he categorically refuses to admit wrongdoing, constantly raises the stakes, and files an endless stream of garbage legal motions, he gets away with it—or at least he has in every previous instance. At his advanced age, I think it is highly unlikely that Trump is going to learn humility or civilized behavior. This time, he needs to go down hard.
