Trump's Shocking Legal Defense Highlights His Authoritarian View Of Executive Power
Trump's lawyer argued Trump could order SEAL Team Six to kill his political rival and still be immune from criminal prosecution. This authoritarian view of executive power shapes Trump's 2025 agenda.
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This morning, the US Court of Appeals for the DC Circut heard arguments from Special Counsel Jack Smith’s team of prosecutors and Donald Trump’s defense team.
Trump’s lawyer argued that Trump has vast presidential immunity from criminal prosecution in the federal case related to Trump’s effort to overturn the 2020 election. Trump’s legal team is essentially arguing the president is above the law for any official acts he takes as president unless he’s impeached and convicted first.
Judges J. Michelle Childs, Florence Y. Pan, and Karen Henderson relentlessly questioned Trump’s defense team and appeared skeptical of their arguments. One argument in response to a hypothetical was so asinine and authoritarian that it left Judge Pan repeatedly asking for clarification.
Early on in the 1 hour and 15-minute hearing, Judge Pan asked Trump's lawyer, D. John Sauer, a question that triggered a truly jaw-dropping exchange.
Judge Pan asked, “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act - an order to SEAL Team Six.”
Sauer replied, “He would have to be, and would speedily be, impeached and convicted before the criminal prosecution.”
Judge Pan interjected: “But if he weren’t, there would be no criminal prosecution, no criminal liability for that.”
Sauer frantically began going on about what the founders intended before Judge Pan cut him off again.
"I asked you a yes or no question. Could a president who ordered SEAL Team Six to assassinate a political rival, [a president] who is not impeached, would he be subject to criminal prosecution?" Judge Pan asked.
Sauer replied: “If he is impeached and convicted first."
Judge Pan later pointed to the fact that some Senate Republicans opted not to convict Trump in his impeachment trial precisely because they felt criminal prosecution would be a viable alternative.
Without naming him, Judge Pan cited Senator Mitch McConnell (R-KY), who directly made this argument before voting to acquit Trump in his impeachment trial. McConnell undermined Sauer’s argument by saying that “impeachment was never meant to be the final forum for American justice,” and Trump is not immune from prosecution.
“We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”
The arguments from Trump’s legal team reached an unbelievably stunning level of authoritarian arrogance. Trump’s defense is essentially arguing that as long as a president is protected by his political party and not convicted in an impeachment trial, the president is totally above the law and can even commit murder. This is incredibly dictatorial and not what the Founders, who created America as a democratic alternative to the British monarchy, intended.
James Pearce, a lawyer representing the Special Counsel, responded to this hypothetical by saying, “I think that is an extraordinarily frightening future that should weigh heavily on the court's decision.”
Pearce is right. This would be an extraordinarily frightening future. And it’s the future Trump and his allies want.
Unfortunately, this is not just a legal argument. This expansive view of executive power is the driving force behind Trump’s second-term agenda and Project 2025.
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Project 2025 is 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 the project and discussed it on the Meidas Touch Network with PoliticsGirl. Trump is on board with much of this plan, and it aligns with his Agenda 47.
The various plans outlined in Project 2025 and in Donald 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 President 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’s using it in his legal defense against 91 criminal charges and as the driving force for his second-term agenda.
Americans should pay attention to the arguments Trump is making in court because they put a spotlight on the worldview of the man trying to return to the most powerful office on the planet.