Trump lawyer and Supreme Court justice clash over whether a president who ‘ordered’ a ‘coup’ could be prosecuted
A lawyer for former President Donald Trump at the presidential immunity hearing clashed with Supreme Court Justice Elena Kagan over a hypothetical question about whether a president who “ordered” a “coup” could be prosecuted.
“If it is an official act, there needs to be an impeachment and a prior conviction,” Trump’s lawyer, John Sauer, argued before the Supreme Court on Thursday, which is broadcast publicly only in audio.
Sauer’s statement was in response to Justice Elena Kagan’s hypothetical question, asking whether a president no longer in office directing the military to stage a coup would constitute an “official act.”
“He’s no longer president. He wasn’t impeached. He couldn’t be impeached. But he ordered the military to stage a coup. And you’re saying it’s an official act?” Kagan asked.
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Justices of the United States Supreme Court pose for their official photograph at the Supreme Court in Washington, DC on October 7, 2022. – (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice Supreme Court John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson. (OLIVIER DOULIERY/AFP via Getty Images)
“I think it would depend on the circumstances, if it was an official act. If it was an official act, he would have to be charged as well,” Sauer responded.
“What does that mean? Does it depend on the circumstances? He was the president. He’s the commander in chief. He talks to his generals all the time. And he told the generals, ‘I don’t feel like leaving office. I want to give a coup d’état. Is that immune? [from prosecution]” Kagan pressed.
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Former President Donald Trump leaves Trump Tower in New York City, Monday, April 15, 2024. Jury selection begins today in the so-called hush money trial in Manhattan Criminal Court this morning. (Probe-Media for Fox News Digital)
Sauer responded that “it would depend on the circumstances of whether there was an official act” whether the hypothetical president would be immune from prosecution.
“That answer sounds to me like, ‘Yes, according to my evidence, it is an official act.’ But that sounds bad, doesn’t it?” Kagan said.
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“That’s why the drafters have a whole series of structural controls that have successfully prevented, for the last 234 years, those kinds of extreme hypothetical situations. And that’s the wisdom of the drafters. What they saw as the risk I needed being protected “There was against the notion that the president could escape, you know, criminal prosecution for something, you know, something very, very unlikely in these unlikely scenarios,” Sauer responded.
“The framers didn’t put an immunity clause in the Constitution. They knew there were immunity clauses in some state constitutions. They knew how to grant legislative immunity. They didn’t grant immunity to the president. And, you know, that’s not the case. “Surprisingly they were reacting against a monarch who claimed to be above the law. “Wasn’t the whole point that the president was not a monarch and that the president was not supposed to be above the law?” Kagan said.
Justice Elena Kagan joined the Supreme Court in 2010 after being nominated by former President Barack Obama. (Reuters/Jonathan Ernst)
The back-and-forth came as the Supreme Court weighs whether Trump is immune from prosecution in special counsel Jack Smith’s election interference case. Smith’s case is currently on hold until the Supreme Court issues a ruling. The case charged Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction and attempted obstruction of an official proceeding; and conspiracy against rights. The case dates back to January 6, 2021, when Trump supporters stormed the US Capitol.
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WASHINGTON, DC – AUGUST 1: Special Counsel Jack Smith arrives to deliver remarks on a newly unsealed indictment that includes four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC . (Drew Angerer/Getty Images)
Trump pleaded not guilty to all charges in August and asked the Supreme Court to weigh whether a former president can be prosecuted for “official acts,” as Trump’s legal team argues.
The Supreme Court is expected to reach a ruling on whether Trump is immune from prosecution in mid-June.
Trump is also part of an ongoing trial in New York City where he is charged with 34 counts of falsifying business records in the first degree. He pleaded not guilty to each charge. The trial prevented Trump from attending the Supreme Court hearing on Thursday.
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The case NY v. Trump focuses on Trump’s former personal lawyer, Michael Cohen, who paid former porn actress Stormy Daniels $130,000 to allegedly silence her claims about an alleged extramarital affair she had with the then-real estate mogul in 2006. Trump has denied had an affair with Daniels.
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Prosecutors allege that the Trump Organization reimbursed Cohen and fraudulently recorded the payments as legal expenses. Prosecutors are working to prove that Trump falsified records with the intent to commit or conceal a second crime, which is a felony. Prosecutors said this week that the second offense was a violation of a New York law called “conspiracy to promote or impede elections.”
Fox News Digital’s Brooke Singman contributed to this report.
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