Trump’s attorneys’ ‘absolute immunity’ bromide is worthy of disbarment

SCOTUS conservatives aid and abet this absurdity.

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Trump lead attorney, D. John Sauer, (and his colleagues Will Scharf and Michael Talent), should all be disbarred. Led by Sauer, this team had the utter temerity to demand “absolute immunity” for presidents from any criminal prosecution. This claim was nothing short of a Hitler styled mandate. The Hitler comparison isn’t hyperbolic; it’s accurate. These are highly trained attorneys who willfully crafted a formula for legitimizing a presidential dictatorship. They’re pushing the asinine idea that presidents have “absolute immunity” from criminal prosecution–and they did it with a straight face. 

For this treachery, they should face permanent disbarment. Instead, this frivolous claim is being reviewed by the Supreme Court. 

This frivolity concocted by Ivy League attorneys…

Normally we would assume that this silly argument came from graduates of the ‘fake’ Donnie Trump law school, but all three attorneys on the Trump defense team are alumni of Ivy League law schools, (Sauer and Scharf from Harvard, and Talent from Stanford). They are also all lifetime republicans and not newly minted Qanon nutjobs. These men ARE mainstream GOP. They are also on a mission to destroy the last shreds of presidential accountability in their quest for professional graft and power. 

And they’re also 100% wrong. 

In fact, this legal team from the James Otis law firm is far more dangerous than Donald Trump could ever be. Face it, Trump is the “useful idiot” and these Federalist Society toadies are the true threat to our quickly fading democracy–already on life support. 

Sauer’s claim of “absolute immunity”…straight from the Nazi playbook…

Adolph Hitler demanded and received the kind of unlimited power that Trump’s team is attempting to weasel. Hitler achieved this abuse of power by pushing passage of the Enabling Act of 1933. This piece of legislation served as the cornerstone to Hitler’s dictatorship, granting him unlimited power. It granted Hitler the power to unilaterally enact laws which directly violated the Weimar Constitution, without a vote of the parliament or Reich President von Hindenburg.  

Now if this coup Hitler devised sounds eerily familiar, it should. This is the same basic argument used by Trump’s legal team when they claimed “absolute immunity” for presidents is not only sanctioned, but legitimate.

Trump yearns for Seal Team 6 to enact illegal assassination orders…

By now the world has witnessed the ‘Seal Team 6’ question, as Judge Florence Pan of the DC Court of Appeals, asked earlier this year; “Could a president order SEAL Team Six to assassinate a political rival? That’s an official act–an order to Seal Team Six.” Trump attorney, D. John Sauer answered the clearly intended ‘yes/no’ question with the following bromide: “He would have to be, and would speedily be, you know, impeached and convicted before the criminal prosecution.” Sauer’s response merely demonstrated the blatant contempt the Trump legal team has not only for democracy, but for rule of law. Sauer further claimed that presidents could only be criminally prosecuted if first impeached and subsequently convicted.  

Under such a tortuous reading of the Constitution, all a criminal president would have to do is order SEAL Team Six, (or any other group of assassins), to commit the extra-judicial murder of a few congressmen or senators, (like any other mafia boss), to halt any impeachment or subsequent conviction. In this scenario, a president could get away with murder. In fact, theoretically, a president could commit genocide with legal impunity. 

The impeachment process under Sauer’s scenario becomes an ersatz game of legislative ‘chicken.’ 

There is nothing in the Constitution or existing body of law that grants the POTUS any kind of qualified immunity from criminal prosecution, much less the “absolute immunity” Trump is demanding. None. The claims by the Trump legal team that there is–runs counter to any original or textualist theory. It also runs counter to any sane reading of the law. 

United States v. Lee…no man is ‘above the law’….

United States v. Lee presented a case of ‘sovereign immunity.’ According to the Supreme Court, the issue of sovereign immunity does have limits. To quote from Justia; 

…”When an action does not need to involve the United States as a defendant or a necessary party, the principle of sovereign immunity should not be invoked to deny plaintiffs the judicial enforcement of their rights.”

According to constitutional law professor, congressman Jamie Raskin, Trump’s legal team essentially ‘flipped the script’ on the principle espoused in the Lee decision, by falsely asserting that the only way a president can face criminal indictment is after a successful impeachment in the House and conviction in the Senate. 

Trump’s legal team is–once again–100% wrong. 

So, where did this asinine argument originate….

The most direct breadcrumbs go back to former President Richard Nixon, followed by the instigators at Heritage Foundation’s Project 2025, and further pushed by Trump acolyte (and presumed attorney general in a second Trump administration), attorney Mike Davis. 

Davis wrongfully stated in a piece for The Federalist…that …”members of Congress and federal judges are immune from civil and criminal prosecution for their official acts.” Now, Davis is a hotshot attorney who in the past clerked for Supreme Court Justice Neil Gorsuch. He was also the…”former chief counsel for nominations to Senate Judiciary Chairman Chuck Grassley” and …”served as the staff leader for Justice Kavanaugh’s confirmation.” He is also the founder and president of the Article III Project (A3P) …”which defends constitutionalist judges,” whatever that means in this insane age where we are now entertaining attorney-led debates over ending democracy itself in favor of a presidential dictatorship.

The actual law as stated in Artl.S6.C1.2 labeled “Privilege from Arrest” in the US Constitution covers the legislature. It’s commonly referred to as the “Speech or Debate” clause. This is the section which grants limited immunity to members of Congress. It reads as follows: 

…”They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.”

Davis’ interpretation of this clause is wrong. Nowhere does it say that members of Congress enjoy a blanket or absolute immunity from criminal prosecution. The exceptions to this limited immunity are stated, namely …”Treason, Felony and Breach of the Peace.”

Davis argues for a convoluted interpretation of congressional immunity which is not reflected in the constitution. He is taking that illegitimate expansion of congressional immunity and attempting to use it to justify the establishment of a presidential dictatorship under the auspices of “absolute presidential immunity”.

A presidential dictatorship waiting in the wings…

Donald Trump stated his position on Truth Social, April 25, 2024. To quote Trump: 

“If a President does not have Immunity, the Opposing Party, during his/her term in Office, can extort and blackmail the President by saying that, “if you don’t give us everything we want, we will Indict you for things you did while in Office,” even if everything done was totally Legal and Appropriate. That would be the end of the Presidency, and our Country, as we know it, and is just one of the many Traps there would be for a President without Presidential Immunity. Obama, Bush, and soon, Crooked Joe Biden, would all be in BIG TROUBLE. If a President doesn’t have IMMUNITY, he/she will be nothing more than a “Ceremonial” President, rarely having the courage to do what has to be done for our Country. This is not what the Founders had in mind! Protect Presidential Immunity. MAKE AMERICA GREAT AGAIN!” 

Looking past the obvious punctuation mistakes, the argument here is that a president must be ‘above the law’ in order to do the job. And yet strangely enough, most Americans routinely do their jobs without requiring license to commit criminal acts. This demand is not only lacking in credibility, it flies in the face of any basic precept comprising what we term, ”rule of law.” Beyond the semantic and syntactic chicanery used by Trump’s legal team, the concept we term “rule of law” historically has substance far past the Donald Trump tantrum review. Trump was clumsily trying to refer to an earlier supreme court precedent regarding presidential immunity from civil litigation after leaving office. The case is known as Nixon v. Fitzgerald. 

Nixon v. Fitzgerald…Sauer’s misrepresentation of precedent…

The case of Nixon v Fitzgerald has been held up by Sauer’s team as the singular precedent articulating the alleged absolute immunity demanded by Trump. Sauer has repeatedly claimed that the only exception for this absolute immunity right, would be successful impeachment in the House, followed by an equally successful conviction in the Senate. Sauer desperately clings to the Fitzgerald case as the ‘Holy Grail’ of presidential power. The Trump legal team also wrongfully claimed that this immunity would not only cover a current president but past presidents for their conduct while in office. Now, Sauer is correct on one point, the FItzgerald case does indeed allow for such absolute immunity depending on context, protecting both current and past presidents—for civil liability. So, Mr. Sauer and his team are telling the truth regarding the case–up to a point. To quote from the case brief:

…”As this Court has not ruled on the scope of immunity available to a President of the United States, we granted certiorari to decide this important issue.” 452 U.S. 959 (1981).

This is new territory for the court, where the six MAGA judges seem to be actively seeking an unconstitutional expansion of the FItzgerald doctrine to include immunity for criminal acts both during and after leaving the Oval Office. Were the SCOTUS to expand presidential immunity to cover the criminal activity of a rogue president or an ex-president, our democracy would be reduced to a cruel joke. 

Presently the Fitzgerald case does not grant such “absolute immunity” to presidents for criminal liability. Donald Trump is being tried for criminal activity and is not covered by the immunity the court stated in the Fitzgerald case. Truthfully, the Fitzgerald decision should be revisited. It granted limited privilege that no president should ever be granted. 

Once again, Sauer’s team led with a ‘lie of omission.’ 

So, what is ‘rule of law’….

The World Justice Project has defined the concept we quaintly refer to as “rule of law.” The definition simply states that …”the rule of law is a durable system of laws, institutions, norms, and community commitment that delivers four universal principles: accountability, just law, open government, and accessible and impartial justice.” https://worldjusticeproject.org/about-us/overview/what-rule-law The World Justice Project was founded by William H. Neukom as part of an initiative by the American Bar Association (ABA). It has the support of some 21 “other strategic partners”.

Using this calculus, granting a president absolute immunity from criminal prosecution would deny us that very…”accountability, just law, open government, and accessible and impartial justice,” which has served as the foundation for that quaint tradition, we humbly term, “rule of law.” 

Supreme Court waxes on about Public v private acts…an exercise in absurdity….

Initially, this blanket immunity would have included criminal acts even of a personal nature, such as assassinating opponents. Recently, the team amended their claim to grant such immunity solely to ‘official’ acts as they were questioned by the Supreme Court. The differentiation between ‘official’ vs private acts is like analyzing belly button lint–aka navel fluff–insane and stupid. 

Yet, the core of the Trump team’s amended argument consisted of trivial hair splitting between “public or official acts as opposed to private aka unofficial acts.” The argument has been based on a reading of the founder’s commentary from over 200 years ago. (Keep in mind that some of these same founders also authorized a Faustian deal with slaveholders in order to obtain these ‘liberties’ for the white upper class of the 18th century–so their virtue and dedication to ‘justice’, ‘freedom’ and ‘liberty’ is already tainted by their own self-interest and hypocrisy). This is one of the problems with the ‘original’ and ‘textualist’ schools of constitutional interpretation. Originals in particular have elevated the words of these very morally compromised founders to a theology. 

Once again, what’s to prevent a rogue president from lying, threatening or murdering anyone who just might claim that the alleged crime in question was a ‘private’ act, and as such, not entitled to immunity? Are these high-priced attorneys from top Ivy League law schools so incompetent that they would expect the public to swallow such an asinine argument? Or are these attorneys merely corrupted with their own arrogant ambitions? 

A subset of this argument contains the bromide that all presidents would be in danger of political retaliation in the form of abusive prosecutions lacking merit. This specific fear was mentioned by Justice Alito as he went on to claim that without such presidential immunity, our national stability would be in jeopardy. So, how do other functioning republics handle this issue?

Multiple nations prosecute their politicians without this same fear…

Frankly, presidents and other public officials, including supreme court justices should fear the threat of their own prosecutions if they break the law, just like anyone else. Granting public officials ‘absolute immunity’ ensures more lawlessness on their part. Such immunity erases any deterrent against wrongdoing. In short, no one is above the law. Unfortunately, relying on the original frame of reference results in subscribing to an oligarchic class that is demanding the privileges of aristocracy. 

These arguments aren’t concerned with preserving ‘rule of law,’ rather they’re based on preserving the prejudiced beliefs of 235 years ago. The idea that presidents couldn’t possibly fulfill their responsibilities without absolute immunity is absurd. Many fully functional democracies routinely prosecute criminal presidents, prime ministers and other public officials.

This theory of ‘absolute immunity’ for presidents, (or even an amended version) argues that presidents are so important that they deserve the right to commit criminal acts with impunity. In the interest of ‘justice’, why should the most powerful individual in the land receive a “get out of jail free” card? This theory is not’ only unjust—it’s foolish. Every American from the most indigent homeless person, to the president should receive the same level of justice. No exceptions. 

Absolute immunity for presidents is a recipe for presidential dictatorship, and Trump’s legal team of D. John Sauer, Michael Talent, and Will Scharf–know it. They just don’t care. They’re basing their argument on half-truths, semantic and syntactic omissions in the constitution itself, and a school of constitutional interpretation that elevates a cynical and prejudicial reading of this very flawed document. While this type of semantic and syntactic hair splitting may be the purview of attorneys, (especially attorneys who know they don’t have a meritorious case); it is not in the interest of equal justice and democracy itself. 

The Trump legal team misrepresented the writings of Ben Franklin…

Trump attorney, D. John Sauer went a step further and deliberately misquoted founder Benjamin Franklin on the subject of presidential immunity. Sauer wrongfully claimed in a filing that: 

“The Framers viewed the prosecution of the Chief Executive as a radical innovation to be treated with great caution. Benjamin Franklin stated at the Constitutional Convention: ‘History furnishes one example of a first Magistrate being formally brought to public Justice. Everybody cried out ag[ain]st this as unconstitutional.’”

Sauer and his team omitted the key tenets of Franklin’s full statement. Professor and legal historian Holly Brewer showed how Sauer took a single sentence out of context, when Franklin called for

…”the regular punishment of the Executive where his misconduct should deserve it, and for his honorable acquittal when he should be unjustly accused.”

This is hardly an endorsement of “absolute immunity,” as Sauer wrongfully stated to the court.

Professor Brewer, once again explained in her posting on X: 

…”So what about that Ben Franklin quote that Trump’s lawyer, John Sauer, read to the Supreme Court during the Supreme Court case on presidential immunity? Was it accurate? The words are fine, but Sauer’s interpretation was deliberately misleading.”

Brewer’s last sentence devastatingly sums it up. 

“Franklin would be horrified.”

Brewer further explained that: “Franklin’s actual speech, the whole of it, if someone read the next few sentences, says exactly the opposite of what John Sauer was implying.”

Originality is the virus that brought us this danger…

Originality and textualism form the basis for this anemic argument. Both schools of thought limit the scope of justice to the actual words and their concrete meaning in the constitution. There is no room for any amended interpretation which reflects the realities and needs of the 21st century. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4090893 

Originals would reduce ‘rule of law’ to the vacant meanderings of a grocery list. If a particular limit on presidential power wasn’t specifically named on the list, then that limit doesn’t exist. This ersatz philosophical approach mocks the very concept we term, “rule of law.” Originalism, slavishly followed to its logical conclusion would look like the following:

Law ABC states that robbing banks at gunpoint is a crime.
Law ABC omits the theft of bank funds in the billions by bank executives.
Since law ABC only names bank robberies at gunpoint and makes no mention of internal theft by bank executives, those same executives are not guilty of bank robbery. 

The absurdity of the original position lies in the idea that a law is only constitutional if either mentioned specifically in the original document, or the item has been deemed constitutional via the amendment process. Originality is so absurdly concrete that it should be termed ‘semantic autism.’ 

Supreme Court enabling Trump…

The DC Circuit court kicked this frivolous case out, while maintaining a narrow scope of interpretation. They addressed the issues of the specific case, namely Trump’s involvement in active election subversion. Trump was charged with the following:

Conspiracy to defraud the United States;
Conspiracy to obstruct an official proceeding;
Obstruction of and attempt to obstruct an official proceeding and
Conspiracy against the right to vote and have one’s vote counted.” 

The DC Circuit Court of Appeals denied Trump any “absolute immunity” from criminal prosecution while narrowing the scope of their decision to the actual facts of the case. So, why is the Supreme Court working feverishly to ignore those same case facts, while crafting some exotic and tortuous theory to justify executive privilege on steroids? Why did the Supreme Court agree to review this frivolous case at all? Until the Supreme Court is held to the same ethical standards as other judges, we will never find out. 

Conclusion…

Donald Trump did not conceive of this “absolute immunity” scheme. He’s not that bright. No, this clearly illegitimate mockery of justice itself was pushed by alumni of top Ivy League law schools as part of an addictive quest for professional gains and naked power. The legal team that presented this addled argument should all be permanently disbarred for this obvious attack on justice itself. Not only should this case have been laughed out of court, but the legal team censured. Trump’s attorneys made the specious claim that “absolute immunity” from criminal prosecution was necessary for any president to–do the job. That claim is akin to granting a thief immunity on the equally asinine claim that without immunity that thief couldn’t ‘do his job.’ 

To quote U.S. District Court Judge Tanya S. Chutkan…”Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”

Trump’s legal team made their choice. They sided with the illegitimate monarchists as they prostituted themselves for further career advancement, emulating the “world’s oldest profession.” 

As for the conservatives on the Supreme Court, they must choose between actual ‘rule of law’–and luxury fishing trips. 

FALL FUNDRAISER

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Jeanine Molloff is a veteran urban educator specializing in communications disorders. She moonlights as a political commentator on various issues including civil liberties in an age of ‘terrorism’, ecological justice, collateral damage in war zones, economic equity and education. Jeanine has published with Huffington Post, OpEdNews, FireDogLake, Counterpunch and Huffington Post Union of Bloggers. In an era of state and corporate sanctioned censorship; she believes that journalism which demands answers to the tough questions is the last remaining bulwark of democracy. Now more than ever we need the likes of I.F. Stone over the insipid voices of celebrity infotainment. Jeanine works and lives in St. Louis, Missouri. Don't miss Jeanine's podcast, Progressive News Network and the Environmental Justice Report, on Blogtalkradio.

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