Friday, June 21, 2024


I keep re-reading this New York magazine post by CNN analyst and former prosecutor Elie Honig in the hope that I'm missing something obvious, because if I'm not, then Honig is clearly the most naive person in the media and would be the worst possible person to negotiate anything.

Honig writes:
During oral argument on Donald 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 Six to assassinate a political rival [and] who was not impeached, would he be subject to criminal prosecution?”

Trump’s attorney John Sauer — Rhodes Scholar, Harvard Law School grad, Supreme Court clerk, former solicitor general of Missouri — gave this astonishing answer: “If he were impeached and convicted first.” Pan incisively replied, “So your answer is ‘no.’” Sauer tried to recast his response as a “qualified ‘yes,’” but the damage was done. The hypothetical resurfaced during Supreme Court oral arguments with a bit of additional hedging by Trump’s team, but their bottom-line position remained mostly unchanged.

Sauer’s answer to the SEAL Team Six question, on Trump’s behalf, is wrong, reckless, and self-defeating. It’s also entirely unnecessary to the argument he needed to make and to how the Supreme Court will likely rule.
Any idiot can see what Sauer was trying to do there, right? He was trying to make an outrageously maximalist case for Trump's immunity from prosecution, so when a majority of the justices on the Court give Trump a great deal of immunity, they'll be seen as making a moderate decision. He's moving the Overton window -- or you could say he's just starting a process of dealmaking with an outrageous ask, as dealmakers routinely do.

Honig can't possibly fail to grasp this, can he? Can he?

Yes, he can:
Here’s a better answer, which Trump’s team could and should have given: “Of course, a president who ordered SEAL Team Six to assassinate a political rival can be indicted. In fact, this scenario helpfully illustrates our point. The relevant question is whether the charged conduct is within or beyond the outer perimeter 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.”
So Honig believes that Sauer -- who, like a majority of the justices on the Supreme Court, is affiliated with the Federalist Society, and thus will be recognized by those justices as someone who's on their team -- should have started the bidding by asking for exactly what his client would settle for, instead of asking for more. That's how Honig thinks this works.
When, any day now, the Supreme Court rules on criminal immunity, 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.
Probably not.
Indeed, the Supreme Court can — and I believe will — firmly reject Trump’s SEAL Team Six response but still establish a more limited (and more sane) variation of presidential immunity.
I think it will be more limited, though I don't think it will be "sane." I expect the justices to give Trump a tremendous amount of immunity, stopping just short of saying he can lawfully order the assassination of a political rival. And they're counting on that to look like a reasonable decision in part because Trump and his legal team had such an unreasonable ask.

Does Elie Honig serioudly not understand this? Is this the best the mainstream media can do for legal commentary?

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