Thread by @Brandi_Buchman

Oral arguments weighing the immunity claims of Donald Trump, the twice impeached, quadruply indicted former president accused of criminally conspiring to overturn the 2020 election (and 90 other charges across four total venues), start at 9:30AM ET.
link: youtube.com/live/PEQ1aToav…

Proceedings will be underway shortly. I'm not in the courthouse today, but following along remotely. I will post updates here and then I will have a report out later for @lawcrimenews.

If you prefer, the livestream link is also available from our friends at CSPAN c-span.org/video/?532581-…

We will have three judges on the appeals panel today: Judges Michelle Childs, Karen LeCraft Henderson, and Florence Pan. Pan and Childs are Biden appointees. Henderson is an appointee of George HW Bush.

Arguing for special counsel, I expect to hear from James Pearce today. And for Trump's side: John Sauer.

And away we go. The stream has started.

Trump's atty Sauer says they will focus on impeachment judgment clause first; not going to focus as much on double jeopardy. But first there are questions over jurisdiction, as were raised by American Oversight in its amicus brief that challenged whether Trump could appeal....

... at this stage.
Separation of powers claims have raised the question before of whether interlocutory appeal (an appeal before a conviction, essentially) is appropriate....

Sauer notes the government hasnt challenged jurisdiction in this matter.
Sauer wants to turn to the merits.
To authorize prosecution would open a Pandora's box for which this nation might never recover, he says....

S: Could Obama be charged with murder for targeted drone strikes abroad?
Pan: I understand your position is a president is immune from any official act that he takes as president even its its unlawful, is that correct?
S: W/exception POTUS is impeached and convicted by Senate

Pan: So could president sell pardons or secrets? That's an official act.
S: That's an excellent example. Allegation of Clinton selling pardon to Mark Rich - didnt prosecute because raised q's of whether he could be
P: But you say he can't be?
S: As long as its an official act

Could president order assassination of political rival by seal team 6?
Sauer: Thered have to be an impeachment.....
Pan says i asked you yes/or no question - if he wasn't impeached, subject to criminal prosecution?
S: Qualified yes, political process that would have to occur...

Sauer: They were concerned about abuse of political processes...
P: i've asked you a series of hypotheticals of criminal axns that could be taken by POTUS and could be considered official, would such POTUS be subjct to crim prosecution? You said no?

So a president could sell pardons, order assassination of political rival by Seal Team 6 and that's an official act? Pan presses Sauer.
The presidents official acts are never examinable by the courts, Sauer says, citing case law....

Pan: So if he is convicted, that he is subject to criminal prosecution?
Sauer: yes
Pan has on the rope here -
P: Youre conceding they can be prosecuted under certain circumstances
S: Specifically if you're convicted thru impeachment clause

Pan: Doesnt that narrow the issue before us: can a president be prosecuted w.o first being impeached & convicted? All of your other args seem to fall away, separation of powers arguments fall away if you concede that a president can be crim prosecuted under certain circumstances

Pan: You're saying there is this absolute immunity grounded in sep. oif powers that judiciary can never sit in judgment of what president is doing but youre conceding thats not true because under certain circumstances

Sauer: There's a narrow exception for conviction...
Pan: It seems to me once you concede presidents can be prosecuted under some circumstances, your sep of powers arg falls away. your issues to us are your interpretation of the impeachment clause. Thats all we rly need to decide

Sauer says opening criminal prosecution to presidents mean that Biden can be indicted for opening the border (oh boy)

Childs notes how prosecutors are not politicized, but a member of congress conducting impeachment might be; the impeachment judgment clause is limited to certain acts - Impeachment only deals with certain crimes, bribery, treasons, high crimes & misdemeanors

Childs tells Sauer you're not always confined to the impeachment judgement clause....
Sauer falls back on "the uniqueness of the presidency and person who occupies it..." argument

This section is moving fast and I rather not tweet inaccurate information on the fly, so bear with me. I'll post updates when I can.

In Trump v Vance, Henderson notes, Trump said he couldn't be prosecuted while he was in office but he also conceded that he could be prosecuted once out.
Sauer says that was purely private conduct. Now Pan pulls congressional record....

Trump during his impeachment argued there would be an option for criminal prosecution later, Pan notes.

Sauer: We disagree with that characterization of the record...whatever concession may have made made there ... these are very different proceedings.....

Henderson says lets go to Marbury v Madison -
Isnt it true the progeny of that case law has distinguished between discretionary and minsterial (aka imposed by law) and that, the latter one, is which he can be held liable?

Henderson asks Sauer to address US v Johnson and Commonwealth of VA.

First deals with speech and debate clause, Henderson says, meaning, he can still be prosecuted. that congressman for conspiracy to defraud the US and then in Va case, the judge had been charged w/crime under which he couldnt discriminate picking jurors based on race

Sauer says this question has never been extended to the presidency
Henderson notes how it has never had to before....

Henderson asks about take care clause - effectively, president is required to take care to obey all laws and uphold them....

Sauer says they are inherently discretionary.
There's no statute that could impose on president a mandatory duty to engage in....

Henderson: I think its paradoxical to say that his constitutional duty to take care that laws be faithfully executed allows him to violate the laws. Now we're at motion to dismiss stage. Govt has charged specific criminal laws. We have to assume they're true

Sauer: My response would be to emphasize what was said in Marbury, they can never be examined in courts
Henderson: I thought you agreed official acts was subdivided in duty bound and ministerial and within duty bound, at least in respect to legislators and judges...

Henderson cont: They have been held criminally liable and thats in the face, at least with legislators, with explicit constitutional privilege,

Pan says SCOTUS reviewed a number of cases where judiciary reviewed presidential decisions/ executive action; Sauer says a half dozen cases Pan rattles off are exceptions.
Sauer argues: This court has ruled you cannot issue injunction against POTUS

Childs: Youre saying president has to be impeached and convicted - if there is an acquittal how are you using it in that regard? Acquittal can arise from lack of jurisdiction, not actually trying merits of case?

That was a bit of a roundabout to Childs q on how acquittal functions under his theory ...

Caught part of it only but Sauer argues, same thing comes up under double jeopardy clause, determination they were acquitted doesnt factually determine guilt

Pan: Under Nixon v Fitzgerald, we're supposed to conduct a balancing test.... I see you trying to rep need for executive to have this immunity to facilitate exec functions, act w/o hesitation, be fearless... but it seems to me there are other Art II issues that are countervailing

I'm going to get into more of this later for my report.
Sauer is off.

John Pearce for special counsel is now up.
P: Never in our nation's history until this case has a president claimed that immunity in crim. prosecution extends beyond his time in office

Pearce: At min, in this case, it is not the place to recognize some novel form of criminal immunity
He urges court to consider the questions, but he says case law in Cisneros, SCOTUS, have acknowledged that some explicit guarantee of immunity is a suggestion not statutory Rx

Pan: Why arent you taking position you should dismiss this appeal as interlocutory? (AO amicus)
P: It is doing justice and that means getting law right.. its our view even if a dismissal on jurisdiction might move this case faster... we don't think thats the right analysis here

Precedent under Midland Asphalt, Pan says, indicates to her that the appeal is interlocutory.... there's back and forth that went quite quickly, but to my ear, he's conceding that they would be willing to argue the appeal on its merits if jurisdiction arg didnt cut it

Had to step away for a moment.

Pearce: What kind of world are we living in if a president orders his seal team to assassinate a political rival and resigns before an impeachment? Not a criminal act?
President sells pardon and resigns and is not impeached? I think that's an extraordinarily frightening future...

There's debate over the outer perimeter standard: The types of official acts, official conduct and how far within the scope they fall and whether you can get to the question of mens rea, or intent.

Pan says Trump concedes he can be prosecuted IF he's convicted/impeached by Senate.. is he correct? And if he's not?
Pearce: The defendants theory has evolved over course of this litigation and now i understand args to be... a conditioned precedent argument.

Pearce: There's only criminal liability for our former president if that president has been impeached and convicted.
that is wrong for textual, structural, historical and host of practical reasons

Pearce: That means if he engages in assassinations or selling pardons and isnt impeached or convicted, there is no accountability for that individual and that is frightening.
now, on structural... sauer suggests thats what founders were talking about...

Pearce: Thats entirely an inaccurate representation of founder history. impeachment clause did two things: it constrained the sanctions congress could place on impeached and convicted officer, not only president, but any type to removal or disqualification and...

Pearce cont:...it made clear that that impeachment did impose a bar on further prosecution.. you'd think if there was an impeachment first requirement, you might actually find it somewhere in early history... the ratification conventions...

Pearce: I dont hear the defendant offer anything but 'well, hamilton, but all hamilton offered was a sitting president couldnt be subject to prosecution. until he's no longer in office, through impeachment or conviction or through the end of his term

P: the district court argued if this rule was right it would pose significant sep of powers problems of its own. it would mean EB could only prosecute someone if congress acted. there's several reasons congress might not act...

- they may decide they dont have jurisdiction, (many hold that view in congress today with trump's second impeachment)
Sauer is up again to rebut.
Pan presses him. If Trump was impeached and convicted for same and similar conduct, would he be open for criminal prosecution?

Sauer says yes after hedging
So if he's convicted by the senate, then he could be prosecuted, correct?
I wouldn't phrase it that way, Sauer says...a prosecution could be properly brought. not this prosecution. i'm not making any concession this prosecution should be brought

pan: let me try one more time. if trump had been convicted when he was previously impeached on conduct for sim/related conduct....
sauer: potentially. qualified with all other legal doctrines violated in this case...
pan: is it allowed?
sauer: i will stand on my prior answer

pan: i understand there are other reasons you might challenge this interpretation but based on your interpretation of this clause...
sauer says impeachment clause authorizes prosecution of president who has been impeached

pan ok - say a president was impeached on charge of incitement of insurrection under the same allegation of criminal indictment, yet he's convicted. then the govt can bring prosecution?'
sauer agrees.

childs: youre challenging these acts happened while president... there's no immunity for official criminal acts... your prosecution might not come until later, until after president has left office, are you telling us we are limited to a timeframe in these questions?

As it concludes, Sauer ends where he began: arguing case law supports claim that a president is never examinable by courts

I'm no lawyer, nor do I pretend to be one. But to my ear, it doesn't sound good for Trump. Panel did not sound convinced of his arguments. Especially not great for Sauer when he conceded important points about impeachment toward end.

MY REPORT lawandcrime.com/high-profile/t…