Friday Round Up! 1/11/24

Trump's lawyers make the case that the U.S. should be more like North Korea.

Hooooooo boy. I was glad to be on the train back from D.C. on Tuesday morning, which gave me plenty of time to listen to the entirety of the oral arguments in the D.C. Circuit Court of Appeals regarding Trump’s claim of “absolute immunity.” I kind of wish there had been a camera recording my facial expressions throughout, because each claim being made by Trump’s lawyer seemed more Koo Koo for Cocoa Puffs than the last.

I discuss the argument in more detail in my discussion with Renato for this week’s podcast, but I want to illuminate just a couple of things. The most vivid part of the argument was Judge Florence Pan’s question whether, if the President ordered Seal Team Six to murder his political opponent, he could be criminal prosecuted. Most of the attention has been focused on the absurdity of the answer given by attorney John Sauer, Trump’s counsel: Yes, but only if he were impeached and convicted by Congress first. Of course there are many reasons this makes no kind of of sense, but what most commentary missed is that Judge Pan’s question wasn’t intended merely to illustrate that Trump’s claim essentially placed the President above the law. Rather, it contradicted Trump’s central argument: After all, if the President can be prosecuted for an official act even in some, extremely rare and limited circumstances, it’s not “absolute,” is it. Sauer falling into Judge Pan’s trap reminded me of someone playing tic tac toe and suddenly realizing that there was no way left to win.

The judges also lured Sauer into admitting that under Trump’s view of the presidency, the interests of the executive branch are inseparable from his own interests (this is why he claimed that campaigning for office is an “official act”). As Judge Karen Henderson noted, though, the office of the presidency is agnostic about who holds the office. In other words, the presidency is a separate institution from the individual occupying the Oval Office at any given time; that institution, moreover, has an interest under Article II in ensuring that its power properly vests in the legitimately elected president, and also has an interest that the laws be faithfully executed. Trump’s argument would collapse any distinction between his interests and the interests of the executive branch and essentially operationalize Nixon’s maxim that “If the president does it, it’s legal.”

There were a bunch of other contradictions in Trump’s argument, mainly with things he has claimed elsewhere. For instance, contrary to Sauer’s argument on Tuesday, Trump’s lawyer had claimed during impeachment that his crimes could only be vindicated through the criminal courts, and that impeachment was not appropriate. (Many senators, including Mitch McConnell, relied on this argument to acquit him.) Sauer also conflated Trump’s campaigning while president — running for office — as one and the same with being president, or holding office. (This contradicts Trump’s position in his post-election lawsuits, in which he explicitly intervened in his private capacity as a candidate for president.) Interestingly, in his appeal challenging his disqualification from the ballot in Colorado, Trump wants to split hairs between “running” for office and “holding” office to show that the Fourteenth Amendment cannot apply to him now.

HYPOCRISY WATCH: Sauer conceded that the crimes for which Trump is charged for January 6 cover the same conduct for which he was impeached, which was incitement to insurrection (Sauer was trying to argue that since he was aquitted there, he cannot be prosecuted for the crimes Smith has charged him for, even if none of the charges are for “insurrection” itself.) My prediction: If Trump is convicted for any of these crimes, I have zero doubt he will argue that since none of them were specifically for the precise crime of insurrection, they don’t count for disqualification under the Fourteenth Amendment. Mark my words.

One last thing, which is not about the merits Trump’s argument but just a general observation: When challenged with numerous times in history when presidents have been sued for official acts — Harry Truman for his seizure of the steel mills, George Bush for his military tribunals, Trump himself for his Muslim travel ban — Sauer made the claim that those didn’t count because they were really suits brought against “subordinate” officials. They weren’t — all of these suits named the president as the defendant and concerned the President’s constitutional authority — but Sauer’s claim that the President’s actions can be severed from his subordinates is completely at odds with the conservative theory of a “unitary executive,” which sees no daylight between the two. (This is the theory underlying the claim that the Justice Department can’t constitutionally investigate a sitting president, because the department is an extension of the president, and the president can’t investigate himself.)

I guess no one ever said consistency was their strong suit.

Noteworthy clips from this week:

I also weighed in on the arraignment of Hunter Biden on Thursday:

Articles worth reading:

• This piece for The Altantic by George Conway, which take a deeper dive into the D.C. Circuit’s deft questioning and John Sauer’s poor lawyering in the face of it

Upcoming events:

• THIS WEEK! Freedom Academy Book Club, Wednesday, January 17, 12 p.m.: A discussion with by Scott Shapiro, author of Fancy Bear Goes Phishing: The Dark History of the Information Age, in Five Extraordinary Hacks. Zoom link will be sent to paid subscribers at 9 a.m. The talk will be recorded and posted the following day.

• Wine & Fries Happy Hour with George Conway, Time/Date TBA (sometime in February). This is going to be really fun, especially on the heels of Trump’s Supreme Court argument. George is one of my favorite legal analysts and is also one of the funniest people I know. Zoom link will be sent to founding members three hours before the event.

• Guest Speaker Nina Jankowicz, Thursday, February 29, 1:30 p.m. I’m thrilled to have Nina, Vice President of the Center for Information Resilience and author of How to Lose the Information War and How to be a Woman Online, join our class to discuss social media, disinformation, and what we can learn from other countries tackling this problem around the world. Zoom link will be sent to paid subscribers three hours before the discussion, and will be recorded and posted for paid subscribers the following day.

• Guest Speaker Barb McQuade, Thursday, March 28, 4 p.m. Speaking of my favorite legal analysts, I’m thrilled to have Barb be a guest speaker for my class, Preserving Democracy in the (Dis)Information Age. Barb is about to release her book, Attack from Within: How Disinformation is Sabotaging America, and I’m excited to get her perspective on where we are as we head into the 2024 election. Zoom link will be sent to paid subscribers three hours before the discussion, and will be recorded and posted for paid subscribers the following day.

The next class lesson will be out on Monday — thanks to those of you who contributed to the assignment last week. And hope to see you all at the book talk on Wednesday!