Former President Donald Trump’s lawyer clashed with Supreme Court Justice Elena Kagan during a presidential immunity hearing over a hypothetical question about whether a president who “ordered” a “coup” could be prosecuted.
President Trump’s lawyer John Sauer argued in the Supreme Court on Thursday, “If it’s an official act, there has to be impeachment and conviction first,” in an audio-only video of the argument.
Sauer’s statement was in response to Justice Elena Kagan’s hypothetical question about whether a departing president directing the military to stage a coup constitutes an “official act.”
“He’s not president anymore. He hasn’t been impeached. He shouldn’t have been impeached. But he ordered the military to stage a coup. Are you saying that’s an official act?” Asked.
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U.S. Supreme Court justices pose for an official photo at the Supreme Court on October 7, 2022 in Washington, DC. – (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito, Associate Justice Elena Kagan, (standing from left) Associate Justice Amy Coney Barrett. , Associate Judge Neil Gorsuch, Associate Judge Brett Kavanaugh, and Associate Judge Ketanji Brown Jackson. (Olivier Drierly/AFP via Getty Images)
Sauer responded, “I think it depends on the circumstances as to whether or not it was an official act. If it was an official act, it would still have to be impeached.”
“What does that mean? Does it depend on the situation? He was the president. He’s the commander in chief. He talks to the generals all the time. And he said to the generals, ‘I’m retiring. I have no intention of doing so. I want to resign.” Is he immune to that? [from prosecution]?” pressed Kagan.
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Former President Donald Trump exits Trump Tower on Monday, April 15, 2024, in New York City. Jury selection begins this morning in the so-called hush money trial in Manhattan Criminal Court. (Fox News Digital Probe Media)
Sauer responded that whether a hypothetical president would have immunity from prosecution “depends on the circumstances of whether there was an official act.”
“It sounds to me like the answer is something like, ‘Oh, in my tests that’s an official act,’ but that’s certainly disgusting, right?” Kagan said.
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“That’s why framers have put in place a series of structural checks that have successfully prevented just such extreme assumptions over the past 234 years. And that’s the wisdom of framers: they protect What did you consider to be a risk?”The president was not against the idea of immunity from criminal prosecution for something, you know, in this unlikely scenario, very, very. “That’s not likely,” Sauer said.
“The Framers didn’t put immunity in the Constitution. They knew some state constitutions had immunity. They knew how to give legislative immunity. They didn’t give immunity to the president. And, you know, that’s not the case. It’s amazing that they were reacting to a monarch who claims to be above the law, and the bottom line is that the president is not a monarch. Shouldn’t we be above the law?” Kagan said.
Justice Elena Kagan was appointed to the Supreme Court in 2010 by former President Barack Obama. (Reuters/Jonathan Ernst)
There have been back and forth moves as the Supreme Court considers whether President Trump will be immune from prosecution in special counsel Jack Smith’s election interference case. Mr. Smith’s case is currently on hold pending a decision from the Supreme Court. In this case, Trump was charged with conspiracy to defraud the United States. Conspiracy to obstruct an official proceeding. Obstructing or attempting to interfere with an official proceeding. and conspiracy against rights. The incident stems from the invasion of the U.S. Capitol by Trump supporters on January 6, 2021.
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WASHINGTON DC – AUGUST 1: Special Counsel Jack Smith to address the recently unsealed indictment containing four felonies against former President Donald Trump on August 1, 2023 in Washington, DC. arrived at. (Drew Angerer/Getty Images)
Trump pleaded not guilty to all charges in August and asked the Supreme Court to consider whether the former president could be charged with “official acts,” as Trump’s lawyers have argued.
The Supreme Court is expected to rule on whether President Trump is immune from prosecution by mid-June.
Trump is also participating in an ongoing trial in New York City, where he is charged with 34 counts of first-degree business record falsification. He has pleaded not guilty to each charge. The case prevents President Trump from attending Thursday’s Supreme Court hearing.
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The New York v. Trump lawsuit alleges that President Trump’s former personal attorney, Michael Cohen, tried to silence former porn actor Stormy Daniels’ claims in 2006 that she had an affair with the then-real estate mogul. The focus is on paying $1,000. Trump denies having an affair with Trump. Daniels.
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Prosecutors allege that the Trump Organization paid Mr. Cohen and fraudulently recorded the payments as legal costs. Prosecutors are working to prove that Trump falsified records with the intent to commit or conceal a second crime, which is a felony. Prosecutors announced this week that the second charge is a violation of a New York state law called “conspiracy to promote or obstruct an election.”
Fox News Digital’s Brooke Singman contributed to this report.
