Turley: Judges Debating Whether To Use “Sledgehammer Or Stiletto” On Trump

Jonathan Turley is no liberal. On the contrary. The legal pundit is a Professor of Law (George Washington University in DC) and yes, a legal scholar. He’s also consulted, and done so for none other than Donald Trump going back to Trump’s impeachments. When a guy like that is telling Trump “Your immunity claim isn’t even a pile of sh*t, just a cloudy and nasty smelling fart and the appellate judges turned on a legal fan like they use in wind tunnels to clear the courtroom of the stench” Trump knows he’s got problems. “Bigly” ones. He’s headed to another courtroom in DC before long unless he can pull another festering dead rabbit out of his MAGA hat to delay his DC trial. So what am I talking about?

Yesterday the DC Court of Appeals heard oral arguments on Trump’ appeal of District Court judge Tanya Chutkan’s denying his claim of immunity from criminal prosecution.  Salon has a great article on what transpired. The title sure got my attention because it began with “Dead Man Walking:” and a picture of an at best bewildered and at worst a “Oh sh*t, I’m screwed. What going to happen to me?” Trump outside a courtroom with his hands held out and a couple of security types in the background at the door of the courtroom. (Must have been taken elsewhere as cameras aren’t allowed inside federal court buildings) If for no other reason it’s worth clicking on the link just to see the whole title of the article and that picture! So what happened yesterday?

For those who don’t follow court workings/process closely normal procedure is for lawyers for both sides to present legal briefs stating their respective cases, and additional briefs responding to what the other side said. Sometimes third parties submit briefs of their own which an appellate court (including SCOTUS) may or may not accept. Sometimes there aren’t even oral arguments. The appellate judges just rely on the briefs. However usually oral argument is scheduled and each side in theory gets the chance to read a summary of their brief. I say in theory because what always happens is the judges start in with questions about what a lawyer for either side had submitted to them prior to the hearing.

Sometimes there aren’t all that many questions. Sometimes a lawyer barely gets past their “May it please the court” (the traditional opening) and the judges jump in with questions.

Yesterday was such a day for Trump’s lead lawyer John Sauer. I listened to the live audio and right off the bat it seemed like the panel was loaded for bear. All three of them it turned out. Being on the side that brought the appeal Team Trump was first up at the podium.  I’m sure Trump’s lead attorney John Sauer who surprisingly is way above the level of Trump legal hacks you’re more familiar with. If you don’t believe me check out his Wikipedia profile. Impressive to say the least and as of yesterday a reputation he spent his career building is trash. Maybe he got paid enough millions (upfront – I can’t see him representing Trump without a huge fee upfront) to take early retirement in comfort. In any case, Sauer knew he was in for some tough questions but he was back on his heels trying to keep from falling backwards off the cliff from the get-go.

All three judges on the panel raked Sauer, Trump and the immunity claim over the coals. What so many pundits are talking about is judge Florence Pan’s drilling down in what George Conway called a legal tour def force:

“Could a president who ordered Seal Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?” Pan asked the attorney.

Incredibly, Sauer insisted (more than once during the proceeding) only if Trump were impeached and convicted. Now, it’s not like the judges (all three of them) didn’t expect from the briefs they’d received Sauer would have credible answers to pointed questions like that but they forced him to say it on the record in court! Ouch. Maybe that’s why Trump decided to attend and sit there at the table with his lawyers. To make sure they said what he demanded they say.  Judge Pan put more pressure on Sauer:

“Given that you’re conceding that presidents can be criminally prosecuted under certain circumstances, doesn’t that narrow the issues before us to ‘Can a president be prosecuted without first being impeached and convicted?” she said. “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,” she added.

I couldn’t help but wonder how much it outraged Trump to have to sit there and listen to this “poison blooded” daughter of immigrants sit up there and grind him, his lawyer’s and his legal claim into a  dust so fine no one could see it blowing away in the wind.  Now that I think about it maybe I’ve been wrong, and Trump does possess some self-discipline after all. He sure as hell needed it yesterday morning.

I’ve already noted what George Conway had to say but should include this:

Trump’s team was “taking a bad argument, their immunity argument, and conflating it with another bad argument, which is something based upon the impeachment judgment clause, and mixing them all together in the hope of getting a stronger together,” he said. “And what happened was the Trump attorney, Sauer, set a trap for himself that judge Pan just completely, completely closed off.”

Chuck Rosenberg is someone I always pay attention to. He’s got impeccable credentials and is incisive in his commentary AND often is the “everybody settle down” person when it looks to everyone like “this time Trump’s (or someone else) is done!” Rosenberg is loathe to make predictions so when he does it’s significant:

MSNBC legal analyst Chuck Rosenberg, a former U.S. attorney, said Wednesday that Trump’s team “painted themselves into a corner by taking this absolutist position that was simple, silly and wrong.”

“It was a ridiculous answer and it exposes to fallacy, I think, of their argument,” he said.

When Rosenberg says you’ve cut your own throat and lost then it’s a safe best you’ve lost and lost huge.  Harry Litman, another legal pundit with a stellar background who I often see is the one who came up with the “Dead Man Walking” line. He said on MSNBC he thinks all three judges will reject Trump’s arguments:

“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” he said.

Litman said the only question, the one that provided a small bit of drama was the possibility the ruling would involve a remand back to the District Court that could allow Trump to come up with more delay games. That will be something to watch for. However, for me the biggest takeaway is Turley who as I said is no liberal and who has provided legal help to Trump. He says Trump’s argument is is “a dead letter with the panel.” On FOX! That means Trump has heard Turley’s take but there’s more he had to say:

“I don’t believe that the judges agree that you needed a conviction to ever prosecute a president,” he said. “I did not come away thinking the panel was likely to rule with the former president,” he added. “At some points, they seem to be debating more as to whether I’m going to use a sledgehammer or a stiletto.”

I don’t know about you, but I doubt Professor Turley will be getting any side income from consulting for Trump on his legal problems moving forward.