'Dead man walking': Legal expert explains the moment Trump lost immunity appeal
January 09, 2024
Former President Donald Trump's attorney John Sauer failed catastrophically in selling an absolute immunity argument the appellate judges considering whether special counsel Jack Smith's election conspiracy prosecution can move forward, argued former federal prosecutor Harry Litman on MSNBC Tuesday.
In particular, he said, it was over as soon as Sauer seemed to concede their position would imply Trump can assassinate his opponents with no recourse.
"He basically threatened some sort of unrest or bedlam if things didn't go his way," said anchor Chris Hayes. "He didn't take any questions ... and the headline comes from a hypothetical that appears in Jack Smith's own briefs, which is to say the argument that Trump and his lawyers are making proves too much, obviously goes too far. It cannot be the case. Under the Constitution and under the rule of law, in a democracy such as ours, it would allow it to be possible to order Seal Team Six to assassinate a political rival and not face accountability but for some impeachment and conviction."
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"Cannot be, that is the headline, all three judges will reject that proposition," agreed Litman. "Basically after Judge Pan asked that hypo about Seal Team Six, Sauer ... was a dead man walking. He will lose. He should lose. Legally, historically, logically, et cetera. So in that sense there is the satisfaction that this vampire will have a stake in its heart."
"But below the headline, Chris, there's more drama, I would say, because this is one of the cases in which the three judges were kind of probing different theories, and one at one stage Judge Henderson said maybe we need to remand, to Judge Chutkan, this. They were probing different ideas, none of which was in lockstep with what Chutkan said. There are two reasons it matters. Depending on how they decide, even if they were unanimous, and you could see it concurring with Judge Henderson, if they were unanimous it could affect the prospects for a remand, and remand might entail a subsequent round of appeals under the remanded standard by Trump and a little bit more delay. And also could affect whether the Supreme Court takes review. So that lower level, there was some drama."
"I think people were basically not confident about the way in which the panel — the panel will reject his claim, they'll do it quickly," he added. "The exact rationale is a little bit uncertain, I would say."
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