“Dead man walking”: Experts say Trump immunity lawyer lost judges after he “set a trap for himself”

Legal experts criticized former President Donald Trump’s legal team for arguing on Tuesday that presidential immunity covers political assassinations.

Judge Florence Pan grilled Trump lawyer John Sauer on the presidential immunity claim during a D.C. Circuit Court of Appeals hearing.

“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.

“If he were impeached and convicted first,” Sauer replied.

Fox News legal analyst Jonathan Turley, a George Washington University law professor, said in an appearance on the network that Trump’s argument “is a dead letter with the panel.”

“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."

Pan during the hearing noted the contradiction in Trump’s immunity claim.

“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.

Conservative attorney George Conway told CNN that the judge trapped Trump’s lawyer in his argument.

"It was an intellectual tour de force by Judge Pan," Conway said, praising her for highlighting the “extreme nature of their position.”

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."

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.

“I’ve been a lawyer for a while, lost a lot of appeals and that was the moment when you watch and say, ‘Wow, you have lost these judges.’ And I don’t think Trump’s team is getting them back,” CNN legal analyst Elliot Williams, a former federal prosecutor, said after the hearing. “This whole idea that there is the sphere of conduct, that somehow presidents are immune from, is just ludicrous,” he added.

Former U.S. Attorney Harry Litman predicted on MSNBC that all three judges would “reject” Trump’s argument.

"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.

But it’s unclear whether the panel will outright reject Trump’s claim, noting that Judge Karen Henderson, the lone Republican on the panel, questioned whether the court should “remand” the case back to U.S. District Judge Tanya Chutkan, who issued the initial ruling rejecting Trump’s claim.

Want a daily wrap-up of all the news and commentary Salon has to offer? Subscribe to our morning newsletter, Crash Course.

“There are two reasons it matters. Depending on how they decide, even if they were unanimous, and you could see it concurring with Judge Henderson, if they were unanimous it could affect the prospects for a remand, and remand might entail a subsequent round of appeals under the remanded standard by Trump and a little bit more delay. And also could affect whether the Supreme Court takes review. So that lower level, there was some drama,” Litman explained.

"I think people were basically not confident about the way in which the panel — the panel will reject his claim, they'll do it quickly," he added. "The exact rationale is a little bit uncertain, I would say."