Trump's Immunity Argument Seeks To Justify Autocratic 2nd Term Plans
Trump's Immunity Argument Seeks To Justify Autocratic 2nd Term Plans
Trump's lawyer argued that a president could order the assassination of a rival, sell nuclear secrets, and launch a military coup and still have immunity. This view of power shapes Trump's agenda.
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What we just heard at the Supreme Court should wake every American up to the looming threat of authoritarianism and the stakes of the 2024 election.
On Thursday, the Supreme Court (SCOTUS) heard arguments from lawyers representing Donald Trump and Special Counsel Jack Smith in the presidential immunity case.
SCOTUS decided to take up the case after the bipartisan three-judge panel at the US Court of Appeals for the DC Circuit unanimously rejected Trump's claims of immunity and warned that Trump's stance on executive power would "collapse our system of separated powers."
By simply agreeing to take up the case, SCOTUS has created delays that make it increasingly difficult for Jack Smith’s 2020 election subversion case to go to trial before the election in November. And judging by the questions asked in Thursday’s hearing, it appears more delays are on the way.
Legal experts say the court seems poised to reject Trump’s broad immunity claim but grant that official acts by a president do have some immunity, while private acts do not. According to SCOTUS experts, the court could send the case back to a lower court which could result in Jack Smith’s indictment being limited, but will still allow the trial to move forward, although on a delayed timeline.
Most of the conduct outlined in Jack Smith’s indictment are private acts. In fact, Justice Amy Coney Barrett asked a series of questions that led Trump’s attorney to essentially concede that some of the allegations in Jack Smith’s indictment could be private acts, and therefore Trump isn’t immune from prosecution for those.
Regardless of the outcome of this case, the arguments made by Trump attorney D. John Sauer are shocking and deserve heightened attention. That’s what I want to talk about in this article.
We’re going to dive into the dangerous authoritarian arguments made by Trump’s attorney, what they tell us about Trump’s view of executive power, and what they indicate about a potential second Trump term.
Trump’s Argument For Autocracy At SCOTUS
The SCOTUS hearing on Trump's immunity claim began with Justice Sonia Sotomayor questioning Trump's attorney, D. John Sauer, early in the hearing.
Sotomayor said that Sauer is essentially asking the court to say that the president is entitled to use the trappings of his office for total personal gain without facing criminal accountability. She's right. It's an absurd, authoritarian ask. An insane, dictatorial view of executive power.
Justice Sotomayor then pressed Sauer on whether he stands by the argument he made to the US Court of Appeals for the DC Circuit, in which he claimed the president could order SEAL Team Six to assassinate a political rival and be immune from prosecution unless he’s impeached and convicted first.
Justice Sotomayor: “Now I think -- and -- and your answer below, I'm going to give you a chance to say if you stay by it. If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts for which he can get immunity?”
“It would depend on the hypothetical. We can see that could well be an official act,” Sauer replied. Official acts, Sauer argues, are immune from prosecution unless the president is first impeached in the House and convicted in the Senate.
So, just to be clear. Trump’s legal team went before the Supreme Court and doubled down on their argument that Trump could assassinate his political rivals without any criminal consequences as long as his political party in Congress protects him. That’s de facto immunity.
The authoritarianism didn’t stop there.
Another exchange with Justice Elena Kagan was eyebrow-raising, to say the least.
Justice Kagan asked, “If a president sells nuclear secrets to a foreign adversary, is that immune?”
Sauer replied, “That sounds like similar to the bribery example, likely not immune. Now, if it's structured as an official act, he would have to be impeached and convicted first…”
So, according to Sauer’s logic, there could be immunity in this case as well if the president finds a way to shroud the sale of nuclear secrets under the guise of an official act.
Justice Kagan followed up with another hypothetical that was absolutely bone-chilling.
“How about if a president orders the military to stage a coup?” Kagan asked.
Sauer responded by essentially saying, “It depends,” but it “might well be an official act, and he would have to be, as I'll say in response to all these kinds of hypotheticals, has to be impeached and convicted before he can be criminally prosecuted.”
Justice Kagan interjected: “Well, he's gone. Let's say this president who ordered the military to stage a coup, he's no longer president, he wasn't impeached, he couldn't be impeached. But -- but he ordered the military to stage a coup. And you're saying that's an official act? That's immune?”
Sauer replied, “I think it would depend on the circumstances whether it was an official act. If it were an official act, again, he would have to be impeached and convicted.”
Justice Kagan pushed again, asking: “Is it an official act?”
Sauer replied, “On -- on the way you described that hypothetical, it could well be. I -- I just don't know. You'd have to -- again, it's a fact-specific, context-specific determination that it's contemplating.”
Justice Kagan replied: “That answer sounds to me as though it's like, ‘yeah, under my test, it's an official act,’ but that sure sounds bad, doesn't it?”
Sauer responded: “Well, it certainly sounds very bad…”
You read that right. Sauer effectively says that a president could order a military coup and could have immunity unless he’s impeached and convicted first.
So, in a nutshell, Trump Attorney D. John Sauer has told the Supreme Court that the president could have immunity even if he orders the assassination of his rivals, sells nuclear secrets, and launches a military coup.
It’s hard to believe, I know, so here’s the full audio recording and an official transcript so you can check it out yourself.
This is how Trump and his allies view executive power, and it shapes their second-term agenda. This authoritarian worldview is on the ballot.
How Trump’s Authoritarian Worldview Shapes His Second-Term Plans
Trump’s second-term agenda is shaped by the authoritarian worldview outlined in his legal arguments. This attempted legal justification for autocracy can be found throughout Trump’s Agenda 47 and the Heritage Foundation’s Project 2025.
Project 2025 and Agenda 47 culminate in an authoritarian plot to replace tens of thousands of federal workers with GOP loyalists, dismantle federal agencies, and turn the federal government into a tool of the far-right. I’ve written extensively about this, discussed it on MSNBC’s The 11th Hour with Stephanie Ruhle, and did a deep dive on the Meidas Touch Network with PoliticsGirl. Trump is on board with much of Project 2025, and it aligns with his Agenda 47.
That agenda includes the centralization of power in the executive branch, outright dismantling of multiple federal agencies, bringing the FCC and FTC under direct White House control, impounding funds issued by Congress, anti-abortion measures, rolling back environmental regulations, immigration crackdowns, ending federal protections for LGBTQ+ people, pushing “Christian Nationalist” ideals, and undoing all progress made in diversity, equity, and inclusion within the federal government under the guise of religious freedom.
The various plans outlined in Project 2025 and in Trump’s Agenda 47 rely on the conservative Unitary Executive Theory. It’s the theory that Article II of the Constitution renders the president an all-powerful figure above accountability and checks on their power.
I wrote about this back in 2019 when then-Attorney General William Barr leaned on the theory to defend Trump from Special Counsel Robert Mueller’s probe. Barr argued that Trump essentially couldn’t obstruct justice.
The theory can be summed up in President Richard Nixon’s infamous words: “Well, when the president does it, that means that it is not illegal.” Or, in Donald Trump’s more precise words, “Then I have an Article II, where I have the right to do whatever I want as president.”
This is an idea the Trump administration embraced in the aftermath of Trump’s unprecedented obstruction of the Russia probe, his tactic of stonewalling Congress, his impeachment defenses, and his efforts to overturn the 2020 election. And now, Trump is using it in his legal defense against 91 criminal charges and as the driving force for his second-term agenda.
This is not what the Founding Fathers intended. They outlined explicit constitutional protections to prevent the presidency from morphing into a monarchy. Even Alexander Hamilton, who Republicans cite in their unitary executive theory, opposed what Trump is arguing.
As Professor Bradley Hays wrote in The Washington Post, Hamilton actually intended the unitary executive to increase accountability by centralizing the power of the executive. Hays also notes that Hamilton explicitly states that the unitary executive does not place the President above the law:
In Federalist 65, he clearly states that a president impeached for misconduct is also “liable to prosecution and punishment in the ordinary course of law.” In other words, the presidency was not designed to be free from prosecutorial inquiry.
Modern conservative advocates of the unitary executive theory appear to leap right over Federalist 65 and have taken a Nixonian view of presidential power – one that places the president above the law entirely.
As Trump’s legal troubles mount, we’re going to continue to hear him speaking about presidential immunity. But it runs contrary to what America is supposed to be.
In this Supreme Court immunity hearing, these arguments go far beyond this specific case. We have Trump’s attorney making an insanely authoritarian argument seeking not only to justify past corruption but to provide the legal foundation for future autocracy.
If you haven’t already, check out my appearance on MSNBC, where we discussed this threat in more detail. Thanks for reading! Let’s do everything we can to spotlight what’s at stake this year.
