Donald Trump's Argument a 'Stone Cold Loser': Attorney

The defense put forward by Donald Trump's lawyer during a hearing on whether the former president can avoid federal prosecution by citing absolute immunity has been criticized by a legal expert.

Joyce Vance, a former federal prosecutor and legal analyst, described the arguments made by Trump's attorney Dean John Sauer in front of the three-judge panel US Court of Appeals for the DC Circuit as a "stone cold loser." The former president is seeking to dismiss the charges filed against him under Special Counsel Jack Smith's investigation into the alleged criminal attempts to overturn the 2020 Election results.

Trump and his legal team are arguing that the case against him should be thrown out as the allegations the former president has pleaded not guilty to four charges relate to his time in the White House, and therefore he can cite presidential immunity. Prosecutors have said committing crimes does not fall under a president's duties, nor can Trump continue to cite absolute immunity now he is no longer in office.

During Tuesday's hearing, Judge Florence Pan asked Sauer whether a president could hypothetically openly commit crimes while in office, giving examples of offering pardons or state secrets in exchange for money, or ordering Seal Team 6 to assassinate a political rival, without fear of prosecution.

Sauer argued that a former president could face prosecution in these circumstances, but only after they have been impeached and convicted in Congress for the offenses first. Trump was impeached for the second time in 2021 for allegedly inciting the January 6 attack, but was later acquired by the Senate.

Writing in her Civil Discourse blog, Vance suggested that Sauer "has to argue" that a president can only face criminal prosecution if he is convicted in the Senate first as otherwise "his client Donald Trump is in trouble."

Vance also noted that under the circumstances laid out by Sauer, a sitting president could resign from office before he is ever impeached and convicted, and therefore could still escape prosecution for any crime he committed, including ordering the assassination of a political opponent.

"It's an unappetizing position. Sauer ran into still more trouble as the hypothetical was played out with both lawyers in turn, exploring the ways a president could avoid being impeached and convicted," Vance wrote.

"They ranged from a president who resigns to avoid conviction, succeeds in concealing criminal conduct until he leaves office so he is never impeached, or even one who orders the deaths of his opponents in the Senate to prevent conviction. Under Trump's theory of immunity, no prosecution would be available in these cases.

"You don't have to be a high-end appellate lawyer to understand that this argument is a stone-cold loser. At least in a democracy," she added.

Trump's legal team has been contacted for comment via email.

James Pearce, assistant to Special Counsel Jack Smith, said during Tuesday's hearing that granting presidential immunity in all circumstances would result in an "extraordinarily frightening future."

Sauer continued to make the argument, saying that without it a sitting president would have to "look over his shoulder or her shoulder every time he or she has to make a controversial decision" while in office over fears their opponents would seek to prosecute them once they have left office.

Sauer gave examples of former president George W. Bush facing prosecution for giving false information to Congress to "induce the nation to go to war in Iraq under false pretenses" or Barack Obama potentially charged for murder for "allegedly authorizing drone strikes targeting US citizens located abroad."

Vance also noted that Pan "went in for the kill" to dismiss Sauer's argument that all acts performed as presidential duties are immune from prosecution.

"Judge Pan had been pushing him on just how broadly that could sweep, for instance, that since communicating with foreign governments was part of a president's job, could he claim immunity for conversations in which he sold government secrets. Sauer responded that a president in that situation could be prosecuted following impeachment and conviction," Vance wrote.

Vance added that the judge suggested Sauer was admitting a president is not completely immune in all circumstances, and that they can still be impeached for an official act.

"Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away," Pan said.

In a post on Truth Social, Trump argued that without absolute immunity a former president would not be able to their "golden years" of retirement once they left office.

"THEY WOULD BE UNDER SIEGE BY RADICAL, OUT OF CONTROL PROSECUTORS, MUCH LIKE I AM, BUT WITHOUT THE RETIREMENT!!!," he added.