Note from Elie: How Trump’s SEAL Team Six Assassination Response Has Distorted the Presidential Immunity Argument 08:31

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Download the Viator app now to use code Viator10 for 10% off your first booking in the app. Regret less. Do more with Viator. Hey, everyone. Ellie here wishing you a happy Friday. Well, it's that time of year when we all collectively play the Supreme Court guessing game. And it's necessarily a limited information exercise on our part, our meaning everyone but the nine justices.

Here's what we always do know. We do know how many cases the Supreme Court has yet to decide. We know what those cases are. They've all been argued at this point. We also know at least one day in advance, sometimes a little more than one day in advance, when the opinion days will be, what days the Supreme Court will be issuing opinions. What they do is they start posting them online at 10 a.m. and then however many more there are drop every five or 10 minutes. Usually in an opinion day, they'll drop

three, four, five, six opinions or so. So you can sort of rough out where we're at. As we headed into this week, there were about 20 opinions left. A bunch of them were high stakes, not surprisingly, including one very, very high stakes case. You know which one this is. It's the immunity case. We've talked about it before on this podcast, but today I want to focus on a specific point

that I think has sort of overwhelmed and distorted a bit the public discussion and the understanding of the immunity case and the arguments. It focuses on an outrageous argument made by Donald Trump, which I think has had the unfortunate effect of leading to a misunderstanding of what's really in play here, what's really at stake here. So I hope we can dig into that and maybe clear it up a bit with this week's piece. As always, please send me your thoughts, questions, and comments to letters at cafe.com.

The most indelible moment in Donald Trump's ongoing textbook rewriting constitutional legal saga was also the most misleading and unnecessary. We all remember how it went down. During oral argument on Trump's presidential immunity claim back in January, District of Columbia Circuit Court of Appeals Judge Florence Pan posed this hypothetical. Could a president who ordered SEAL Team 6 to assassinate a political rival who was not impeached

Donald Trump's attorney, John Sauer, Rhodes Scholar, Harvard Law School grad, Supreme Court clerk, former Solicitor General of Missouri, gave this astonishing answer. Penn replied incisively. So your answer is...

Sauer tried to recast his response as a quote qualified. Yes. I got to use that in life, a qualified. Yes. When I really mean no, but the damage was done. The hypothetical resurfaced during Supreme court oral arguments a few months later with a bit of additional hedging by Trump's team, but their bottom line position remained mostly unchanged.

Trump's legal response to the SEAL Team 6 scenario speaks powerfully and frighteningly to his own conception of presidential powers. It takes a healthy dose of unhinged megalomania to argue for consequence-free political assassination, even in response to a hypothetical. Sauer's reply on Trump's behalf to the SEAL Team 6 question is wrong, reckless, and self-defeating. It's also entirely unnecessary to the argument he needed to make and to how the Supreme Court likely will rule.

Now, here's a better answer, which Trump's team could and should have given. Of course, a president who orders SEAL Team 6 to assassinate a political rival can be indicted. In fact, this scenario helpfully illustrates our point. The relevant question is whether the charge conduct falls within or beyond the outer scope of the president's official job. Obviously, an assassination plot would fall outside and the president would not be immune. But

We maintain here that some of the conduct charged against our client was within the scope of the president's job and therefore entitled to protection from prosecution.

When the Supreme Court rules on criminal immunity any day now, bank on this. The justices will not permit a scenario in which a president can put a hit on a political rival and evade prosecution. Indeed, the Supreme Court can, and I believe will, firmly reject Trump's SEAL Team 6 response, but still establish a more limited and more sane variation of presidential immunity.

The problem with the SEAL Team 6 hypothetical, really with Trump's response to it, is that it miscast the legal framework around immunity and the public understanding of it. Countless times, politicians and commentators have used this scenario to glibly dismiss Trump's immunity claim. Well, he said he can murder his political opponent without repercussion. That's obviously lawless and that's obviously crazy. So he loses. The derision is well founded. The legal conclusion is not.

Trump's team played itself into this unnecessary corner when they adopted the absurd legal argument that a president can be criminally prosecuted only if he has first been impeached by the House of Representatives and then convicted or removed from office by the Senate. They conjured this wild position. They briefed it in their papers and they stuck with it at oral argument in both the Court of Appeals and the Supreme Court. It's an obvious loser and worse yet.

It's entirely unnecessary. As one federal judge said to me years ago when I made a lousy argument, and you've heard me use this quote before, obviously it stuck in my head, Mr. Honig, you've already climbed out on a branch you need not be on, and now you're in the process of sawing it out from under yourself.

The better argument is the one we stated just a couple moments ago. It's all about the scope of the official job. Forget about impeachment by Congress. That's got nothing to do with criminal prosecution. And focus on whether the charge conduct is arguably part of the president's duties.

Indeed, this is precisely the standard adopted by the Supreme Court itself over 40 years ago in the case that established civil immunity, a case called Nixon v. Fitzgerald. Yes, that's Richard Nixon. Here's what the Supreme Court wrote in that case. We think it appropriate to recognize absolute presidential immunity from damages liability, meaning civil liability, for acts within the outer perimeter of his official responsibility, end quote. The court reasoned that federal officials have to make difficult decisions individually

every day, and they should not be influenced or hamstrung by the constant threat of lawsuits over their official actions. All we're asking you to do, Trump's team could have sensibly argued, is to adopt the same criminal immunity rule that you've already established in the civil context. If we don't want federal officials worrying about lawsuits, then we certainly don't want them paralyzed to inaction by fear of criminal indictment.

Count on the Supreme Court blowing right past the impeachment argument and rejecting it out of hand. But that won't end the inquiry. Look for the court also to consider and potentially to create a criminal immunity test based roughly on whether the conduct falls within or beyond the president's official job responsibilities.

When the court issues its decision, it might rule on the spot that Trump's argument fails under the scope of the job test, which would open the door for a pre-election trial, or the justices might send the case back down to the trial court for further proceedings, which would effectively push the trial out until after the election.

I expect Trump's immunity claim will fail in the end, but it won't be because of the SEAL Team 6 response, which has at once monopolized public focus, oversimplified immunity principles, and created unrealistic expectations about how the court will likely rule. Rather, he'll lose eventually because the president has no business pulling the levers of power to try to steal an election. Thanks for listening, everyone. Stay safe and stay informed.

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