United States of America v. Donald J. Trump

On Jan. 10, 2024, former president Donald J. Trump and his attorneys entered the United States Court of Appeals for the District of Columbia. The court is colloquially known as The D.C. Circuit and is considered the most important appellate court in the land other than the United States Supreme Court. Trump and his team were there to argue the merits of their case, formally known as United States of America v. Donald J. Trump No. 233228, which turns on the question of whether presidents can be held criminally liable for acts they committed while in office.

Perhaps that sounds surprising. Perhaps you were taught that we live in a nation of laws, that all of us are subject to and equal before them, that no one, least of all the President of the United States, is above the law, because people who hold themselves above the law are tyrants and dictators and those are exactly the kinds of people we fought to keep from power by adopting our Constitution and breaking from Great Britain during the American Revolution.

I know. I was taught that too.

Yet Trump’s lead attorney, D. John Sauer, stood before the judges and argued that allowing the criminal prosecution of presidents for official acts they committed while in office would open a Pandora’s Box of potential problems because they might be prosecuted for all sorts of acts that were controversial. When questioned by Judge Florence Y. Pan, Sauer suggested that presidents can only be tried if they are first impeached by the United States House of Representatives and convicted by the United States Senate, and even in those circumstances they should be tried only after leaving office.

Think that through for a moment. Sauer argued in open court that a president — say, Joe Biden — could order the assassination of a political opponent — say, Donald Trump — and could not be charged with a crime until after he was successfully impeached and convicted by Congress. What if Congress would not do that? What then? Would he just get away with it? Sauer thinks he would. Worse, he thinks he should.

Except Sauer was not talking about Joe Biden. He appeared before the D.C. Circuit because Donald J. Trump is charged with 91 separate state and federal crimes in four different jurisdictions, and many of the federal charges he faces involve acts he undertook while president. Most importantly, he is charged with participating in an insurrection against the federal government on Jan. 6, 2021, and is seeking immunity to avoid those charges. Moreover, he is using his considerable means to fight every charge and delay every case as long as possible in hopes of being elected president in 2024 so that he can pardon himself.

Presidents do have protection against damages liability for officials acts, as clarified by the Supreme Court in Nixon v Fitzgerald in 1982. But that protection is civil — it prevents presidents from being sued for monetary damages for decisions that are unpopular or ill-advised — and is necessary lest they face endless litigation and find themselves unable to make decisions for fear of lawsuits.

But there is no protection against criminal activity. Article I, Section 3 of the United States Constitution is clear on this point. The pertinent section holds that following impeachment “…the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to the Law.” In other words, presidents and all other federal officials can be tried as criminals for acts they undertook while in office. Period.

Sauer tried to take the phrase and assert that if presidents are not impeached, then they cannot be prosecuted as criminals. This is known as a negative inference, and is fallacious reasoning run amok. It implies that presidents who violated the law but were not impeached or were acquitted during an impeachment process would just get away with their crimes, which would make a mockery of our system of justice. Moreover, the Constitution simply does not say that. The Founders who wrote Article I were making the point that there is no double jeopardy, that conviction through impeachment does not preclude criminal prosecution. And it is worth remembering that impeachment is a political act that occurs outside a court of law, and there are many reasons a president might not be convicted in the Senate that have nothing to do with guilt or innocence. In Trump’s second impeachment, for example, following the Jan. 6, 2021, attack on the U.S. Capitol, 31 of 43 senators thought he was guilty but voted to acquit him anyway because he was out of office by then and they did not think impeachment was the right process to punish him. Finally, Trump’s own lawyers conceded to Senate investigators in February 2021 that he could be charged with criminal behavior, a fact which Sauer seems to have forgotten.

Judge Pan roasted Sauer with questions and by the end of the day most court watchers thought it clear the D.C. Circuit would rule against him. Regardless of what happens, however, the case is sure to be appealed to the Supreme Court, and their decision will have profound consequences for our nation.

For now, we should all ponder the simple question of how much power we think presidents should have. Are they dictators who are above the law unless Congress is willing to impeach them? Or are they citizens of a free republic who must answer to the same courts and legal system that we do? Think hard about this one and think as an American rather than a member of a political party, because whatever power you think the courts should hand to the president go to him or her regardless of their party affiliation. History tells us that when democracies get this decision wrong, they slip toward dictatorship.

I hope we get it right.

Lance Janda holds a PhD in History from the University of Oklahoma and has more than 30 years of experience in higher education. He is the author of “Stronger Than Custom: West Point and the Admission of Women”, among other works.