Sauer: I think that, as the chief justice pointed out earlier, where there is a whole series of, you know, sort of guidelines against that so to speak. Like the [Uniform Code of Military Justice (UCMJ)] prohibits the military from following a plainly illegal act. … That might well be an official act and you would have to be, as I’ll say in response to all these kinds of hypotheticals, has to be impeached and convicted before he can be criminally prosecuted. But I emphasize to the court that —
Sotomayor: Well, he’s gone, let’s say, this president who ordered the military to stage a coup. He’s no longer president. He wasn’t impeached. He couldn’t be impeached. But he ordered the military to stage a coup. And you’re saying that’s an official act?
Sauer: I think it would depend on—
Sotomayor: That’s immune.
Sauer: I think it would depend on the circumstances, whether it was an official act. If it were an official act, again, he would have to be impeached—
Sotomayor: What does that mean, depend on the circumstances? He was the president. He is the commander-in-chief. He talks to his generals all the time. And he told the generals, I don’t feel like leaving office. I want to stage a coup. Is that immune?
Sauer: If it’s an official act, there needs to be impeachment and conviction beforehand because the framers viewed that kind of very low risk—
Sotomayor: If it’s an official act. Is it an official act?
Sauer: On the way you’ve described that hypothetical, it could well be. I just don’t know. We’d have to, again, it’s a fact specific context, specific determination—
Sauer: That answer sounds to me as though it’s, like, yeah, under my attest, it’s an official act. But that sure sounds bad, doesn’t it?
Sauer: Well, it certainly sounds very bad. And that’s why the framers have — and that’s why the framers have a whole series of structural checks that have successfully for the last 234 years, prevented that very kind of extreme hypothetical. And that is the wisdom of the framers. What they viewed as the risk that needed to be guarded against was not the notion that the president could escape a criminal prosecution for something very, very unlikely in these unlikely scenarios. They viewed much more likely and much more destructive to the republic, the risk of factional strife discussed by George Washington.
Sotomayor: The framers did not put an immunity clause into the Constitution. They knew how to; there were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president. And, you know, not so surprising. They were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law?
