On Tuesday morning, attorneys for Donald Trump appeared in the U.S. Court of Appeals for the District of Columbia Circuit to argue that Trump can’t be prosecuted for his acts in attempting to overthrow the 2020 election. Rather than trying to weave some complex legal theory under which recruiting false electors and spreading claims of election fraud is a presidential duty, Trump attorney John Sauer took a decidedly more radical approach.

According to Sauer, a president can do just about anything without facing criminal prosecution unless they are first impeached on the same charge. It was an approach that led to some decidedly jaw-dropping back and forth with the panel of appellate judges.

Judge Florence Pan: Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six?

Sauer: He would have to be, and would speedily be impeached and convicted before the criminal prosecution.

Pan: I asked you a yes or no question.

Sauer: If he were impeached and convicted first.

If that sounds like Trump’s attorney saying a president could order a hit on a political opponent and never face prosecution unless his own party supported his impeachment, that’s exactly what he said.

Could a president sell pardons? Yes, according to Sauer. Could a president sell military secrets to a foreign government? Sauer tried to weasel out of giving a simple answer to any of the hypotheticals thrown his way, but eventually went back to his central theme: A president has total immunity from all prosecution, civil and criminal, unless they are first charged in the House and impeached in the Senate.

Not only was this a position so extreme that even former Trump attorney Ty Cobb wrote to the court to oppose this view, but it turned out to be a wee bit contradictory to a position that Trump held when he was actually facing impeachment.

In 2021, Trump argued that there was no need for a last-minute impeachment since he could always be prosecuted later. Now Trump is attempting to use his party’s failure to vote for his impeachment as a guarantee that he can’t be prosecuted.

Pan: Say the president was impeached and convicted on a charge of incitement of insurrection. Then the government could bring a prosecution for the same or related conduct?

Sauer: Correct.

At the close of Sauer’s presentation, Pan made it clear that everything in Trump’s case hinged on this interpretation that any charges required an impeachment first.

“That is, if he’s correct that the impeachment judgment clause includes this impeachment first rule, then he wins,” Pan said, “and if he’s wrong, if we think the impeachment judgment clause does not contain an impeachment first rule, then he loses.”

Sauer agreed with the statement.

But the best summary of Sauer’s argument may have come from Judge Karen Henderson. “I think it is paradoxical to say that his constitutional duty to take care of the laws be faithfully executed allows him to violate criminal law,” Henderson said.

The arguments in court followed a midnight social media appearance from Trump in which he delivered a string of false accusations against President Joe Biden. This included claims that all the state and federal charges leveled at Trump were on Biden’s orders.

Following the hearing, which Trump attended, his attorneys were back with a repeat of those same false claims. They threatened that unless Trump gets complete immunity, Biden could be prosecuted just because the DOJ brought charges against Trump.

Or, to put it another way …

Arguments on Tuesday were related to the four-count indictment special counsel Jack Smith filed against Trump in connection with his efforts to overturn the 2020 results. The trial in that case is slated to begin on March 4, but U.S. District Court Judge Tanya Chutkan has put further hearings on hold until the issue of immunity is resolved.

Whatever happens at the appellate level, the results are almost certain to be immediately appealed to the Supreme Court.

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