The Sauer/Trump Hail Mary Pass

John Sauer addresses the court.

One of the most common devices of Trump apologists is to cite some rumor or innuendo about a prominent Democrat and sneeringly remark “but sure, it’s Donald Trump who’s an existential threat to democracy.”  Curmie’s response is simple: show some actual evidence that Joe Biden (or whoever) has committed actual crimes and Curmie will cheerfully see them prosecuted and, if appropriate, convicted.  Whataboutism is an admission of guilt.

The fact that there are corrupt Democrats doesn’t make Trump any less of a menace, and Curmie would be hard-pressed to find any Democrat as petulant, vindictive, narcissistic, authoritarian, mendacious, hypocritical, or, frankly, unhinged (certainly not all at once), as The Donald.  These traits aren’t crimes, necessarily, but they’re sure as hell reason not to want him as President.

Curmie has known all this about Trump for years, and you probably have, too, Gentle Reader, as this page doesn’t attract a lot of idiots.  We need only look at the ongoing slanders against the Central Park Five even after DNA proved their innocence, at the absurd insistence that Barack Obama was born in Kenya, at that “grab ‘em by the pussy” line.  Racist?  Undoubtedly.  Sexist?  You bet.  Corrupt?  You have to ask?

All that said, there was a reasonable unease surrounding his criminal prosecutions.  They certainly could have been characterized as an attempt by Democrats (specifically Joe Biden?) to weaken a political opponent.  Notice, Gentle Reader, that the previous two sentences are in the past tense.  That’s because this week happened.

You’ve probably heard all about this incident already, Gentle Reader, and Curmie is far from the first to comment, but some ideas bear repeating.  This Tuesday, Trump lawyer John Sauer went on the record—with Trump by his side—arguing that Presidents or ex-Presidents could not be prosecuted for such crimes as selling pardons or even ordering SEAL Team Six to assassinate political rivals, provided only that they had not been impeached by the House and convicted by the Senate.  Trump himself appears to have endorsed his lawyer’s argument later this week.

Curmie isn’t going to bother to include a zillion links, many including audio recordings, of the courtroom proceedings—you can use the Google machine as well as Curmie can—but he does recommend Jacob Sullum’s article on Reason .

Needless to say, Judge Florence Pan eviscerated Sauer’s argument, and James Pearce, assistant to special counsel Jack Smith, piled on.  Pan pointed out that “Your separation of powers argument falls away, your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances.”  Pearce pointed out that under Sauer’s reasoning a President could commit such an illegal act and then resign before he could be impeached, thereby literally getting away with murder.  (Please note that there will come a time when the President is a “she” or perhaps even a “they” rather than a “he.”  Please accept the masculine pronoun for convenience sake in the short term, at least, as it describes the current President and all of his predecessors.)

Sauer, not the brightest light in the marquee (seriously, what lawyer with any brains or integrity would make such an inane argument, and what competent judge, irrespective of political persuasion, would accept it?), then made things worse by arguing that such a scenario would be preferable to the possibility of a politically motivated prosecution. 

You read that correctly, Gentle Reader: politically motivated murder is not as bad as an arguably politically motivated prosecution which, of course, wouldn’t lead to a conviction except in the absence of reasonable doubt in the mind of even a single juror. 

Sauer also omits, presumably intentionally unless he’s an actual idiot as opposed to just not being very bright, the fact that such crimes could be perpetrated, or the President’s culpability discovered, late enough that an impeachment could not occur while that President was still in office.  (The Senate vote on Trump’s second impeachment came after he was out of office, and Mitch McConnell, among others, argued that one reason for acquittal was that Trump was no longer President and could still be tried for any criminal acts committed while in office.  The impeachment by the House, however, happened while Trump was still President.)

It also appears that Sauer is arguing that even if a President were to be impeached and convicted of, say, selling pardons, he couldn’t subsequently be prosecuted for… oh… giving nuclear secrets to Vladimir Putin, or in fact calling out SEAL Team Six to whack a political rival.  If the Constitution really does say any of this stuff, then it's time to throw the thing out and start over.  But, of course, it doesn’t.

But there’s a layer of outright stupidity here that has barely been plumbed.  Donald Trump is making it increasingly clear that if he ever enters the White House again except as a tourist, and if his immunity argument is regarded as reasonable, then he not only could, but will, use that power to enrich himself and sound the death knell for the nation as we know it.

But, you see, if a President can do anything he wants in his official capacity, up to and including ordering the murder of political rivals… well, Joe Biden is President now, and there’s this annoying loud-mouthed demagogue who threatens not merely Biden’s political future, but the entire nation’s freedom.  And SEAL Team Six is only a phone call away.

What Sauer is hoping for, of course, is a delay.  He believes that the longer the court takes to tell him to take a long walk on a short pier, the better it is for his client.  Significantly, however, this strategy is a good one only if Trump really is guilty.  Curmie, who despises Donald Trump with every fiber of his being, doesn’t know enough about the specific laws and the specific charges faced by the former President to declare him guilty of crimes.  That said, if Trump is really innocent, he’d want the trial to happen quickly, get an acquittal, and then bellow even louder that Biden is exacting vengeance on a political rival.  Instead, the defense team implicitly grants that Trump’s actions were illegal, but argues that he ought to have been able to get away with them.

It is not a news flash that Donald Trump is both dangerous and stupid.  Sauer’s argument is, too.  It is so palpably ridiculous that it could only be a desperation move: a Hail Mary pass, as it were.  You don’t throw a Hail Mary if you can win the game by taking a knee.  Sauer’s stratagem is therefore not merely desperate in its own right, but also a pointer to a larger desperation.  He knows the relevant statutes and the evidence far better than you or I, Gentle Reader, and he clearly believes that if the case were actually to go to trial, a conviction is more likely than not.

Here’s hoping the prison will allow The Donald to dye his toupée so the color doesn’t clash with his orange jumpsuit.  A refusal of such a request would be far closer to cruel and unusual punishment than holding him accountable for his own actions will ever be.