Cough and you’ll miss it. Right at the Two Minute mark in this audio recording. The words are:
That would not be held as an official act.
Now, other commentators are rightly observing that Dr. Sauer was flailing and dodging and weaving as hard as he could to avoid answering a direct question from the judge. The Gish Gallop was strong with this one. By now you’ve probably heard how the question on point was whether a President could order Seal Team 6 to assassinate a political rival and if there was no impeachment then the President would be immune from any possibility of prosecution.
The direction that others have noted with this question is that it opens up a Purge like window of opportunity around inauguration day; when there isn’t time for an impeachment, and a president can run wild, engaging in all kinds of illegal conduct without threat of consequence. That is a real and valid criticism of the argument presented, but it is actually a distraction and misses the underlying argument, which is even worse.
Begging a Huge Question
OK, so let’s back up a little bit and recognize that TFG’s principal immunity argument isn’t an immunity argument at all. It is a massive exercise in begging the question. What at first listen appears to be an absolute immunity argument is actually an absolute deference argument.
To get there, let’s go through Federal Immunity. The idea of absolute immunity is actually not new, it is an outgrowth of sovereign immunity, and actually applies to all federal employees. When performing their official duties, they are immune from suit or prosecution, even low level ones.
An example that comes up often is postal workers (admittedly they are a gray area, but for some purposes, like the example, they have special status as federal employees). When delivering the mail, postal worker are immune from parking tickets. They can stop and park wherever is most expedient for delivering the mail, and if they get a ticket it is automatically dismissed. And it is also true that the immunity is absolute; unless the federal government chooses to waive the immunity for some reason, the court doesn’t have any discretion, it must dismiss the ticket. Full stop. If postal vehicles are being a nuisance, then there are remedies other than prosecution, and some postal service divisions may waive immunity by policy, but the immunity still exists. This immunity, called ‘absolute immunity’ is common to all federal employees including the President.
Thing is, absolute immunity only applies to official acts. To go back to the postal worker analogy, if a postal worker gets a ticket on their way to work, they are not performing official duties and so are subject to lawsuit or prosecution just like everyone else.
What is interesting is what isn’t emphasized in the brief, arguments and press conferences. There is the issue of how it is decided what duties are official or not for a federal official. The answer is that it is the courts, and it is far from a sure thing.
Interestingly, there is a case already decided called Blassingame. It is a DC court of appeals case on a civil matter against TFG that ruled that the actions around Jan 6 are outside the ‘outer bounds’ of his duties as President. Actions can’t be both in and out of scope for official duties, it is binary, they are either in or out. Also note that the DC court of appeals heading the criminal immunity case is the same one that just recently ruled on the civil matter. That kind of makes TFG’s appeal untenable. Yet for some reason, it doesn’t show up in the appellant briefs at all! Normally overcoming a hurdle that big would be a major focus of the briefing.
During the oral arguments TFG’s lawyers hammer the ‘absolute immunity for official acts’ line as hard as they possibly can, and simply avoid mentioning the other issues whenever possible. The reality is that it is a completely fair question for the court to consider whether TFG’s actions surrounding Jan 6 are a proper official act. All of the oral arguments ignore that key question and power forward assuming that the question has been decided in their favor, when in reality the opposite is true.
The Real Argument
Not that it has any real validity, but when laid bare, the argument presented by TFG’s lawyers isn’t one of absolute immunity. It is one of absolute deference. By ignoring the issue of the scope of official acts, TFG’s lawyers are taking an even more audacious position. They are demanding the court grant absolute deference to any claim by TFG as to what constitutes official immunity. They go beyond arguing that the courts have no jurisdiction over official acts (already a dubious and controversial position) and are extending that to claim that courts must take a President at his word as to what constitutes an official act and may not second guess that finding either.
Laid out like that, arguing that courts can’t second guess a President’s assertions about what falls within their official duties is fully absurd. If Presidents can simply claim a connection to official duties for anything they want, why bother with any kind of analysis about what is or is not official in the first place? Why not simply grant Presidents kinglike status and move on? There is simply no way to square such an idea with the notion of checks and balances.
The President is Different
You may have also heard of the “OLC Memo” or “Presidential Immunity” come up in oral argument.
The basic idea behind the memo comes from the idea of separation of powers and three co-equal branches of government. That idea extends to the principle that the three branches don’t overrule each other and can’t meddle in each other’s business (although they certainly try, which is the origin of plenty of disputes between the branches, going back to George Washington). The basic reasoning of the OLC memo is that because of the separation of powers, and the fact that a large number of duties are spelled out plainly in the constitution as jobs for the President, the Judicial branch can’t touch the President during his term in office, because doing so would interfere with those constitutional duties, and the Judicial branch has no right to do so.
It is important to recognize two facts with this memo. First, it was written by a lawyer for the Office of Legal Council, a lawyer whose client is the Office of the President of the United States. The client isn’t the President, it is the Office of the President, and so the lawyer is protecting the interests of the office, and by extension, anyone who holds the office. It has a constitutional reasoning, but has never been enacted into law or the constitution. Second, the memo, while often referenced, has never had a major challenge at the supreme court, and so the level to which it is truly binding has never been established.
Courts have ruled against presidents before to force them to comply with certain legal processes, especially congressional subpoenas. Referral for prosecution is the normal method of enforcing such a subpoena, and congress doesn’t need any help from the courts for impeachment. Clearly impeachment can’t be the only remedy or courts wouldn’t be ordering presidents to comply with subpoenas. TFG’s position directly undercuts US v Nixon, but that doesn’t really come up.
The OLC memo is basically irrelevant in this immunity case, because TFG is no longer President. It does make a sound case that the President specifically has certain duties specified in the constitution and so is slightly different than other civil servants. The OLC memo gets thrown around a lot as a red herring, pushing courts for deference or trying to conflate the ‘presidential immunity’ which is really only an absolute deferral of prosecution, with absolute immunity to try to do some legal alchemy and confuse the issue.
The Tell
So how do we know that the entire ‘Absolute Immunity’ argument as presented by TFG’s lawyers is a Gish Gallop?
Here’s the tell again with the critical word emphasized.
That would not be held as an official act.
That word ‘held’ is significant because it refers to a court. It is a recognition that courts get to judge whether or something is an official act. He makes the statement as a way of disagreeing with a judge’s hypothesis that a President would be immune from prosecution, clearly showing that he knows that non-official actions are absolutely a potential source of prosecution.
TFG’s lawyers were well prepared for the the ‘Seal Team 6’ question. Their dodge and weave is part of a pattern. They’re taking an audacious position, and using the frustration of getting a straight answer to focus attention on it. It is a magician trick, it is the ‘big, shiny object’ that they’re using to distract from their real objective.
And that objective is twofold. It is to delay the court proceeding until after the election by making each court in turn address the appeal, and to distract the media and you, the media consumer. The goal was to create lots of soundbites and controversy over the extent of presidential immunity for official acts, and sidestep the question in the media of whether or not pushing the J6 insurrection could possibly be an official act.
But for those four seconds, Dr Sauer’s mouth was running on autopilot and got past his filter. He gave away the fallacy in the position, and acknowledged the real law that the soundbites are going to miss or ignore. I doubt the appellate court will fall for it, however.