Sauer: As the Chief Justice pointed out earlier, I think there’s a set of, sort of, guidelines for that.like below [Uniform Code of Military Justice (UCMJ)] The military is prohibited from following clearly illegal actions. …It could possibly be an official act, and as one would say in response to any hypothesis of this kind, he would need to be impeached and convicted before he could be criminally charged. However, I would emphasize the following in court—
Sotomayor: Well, he’s gone, like, this president who ordered the military to stage a coup. He is no longer president. He was not impeached. He couldn’t impeach him. However, he ordered the military to stage a coup. Are you saying that is an official act?
Sauer: I think it depends on…
Sotomayor: That’s not affected.
Sauer: I think it depends on the circumstances whether it’s an official act or not. If it was an official act, he would still have to be impeached…
Outside Mayor: What does that mean? Does it depend on the situation? He was president. He is the supreme commander. He talks to the generals all the time. And he said to the generals, “I don’t feel like resigning.” I want to cause a coup. Is it immune?
Sauer: If it’s an official act, it requires impeachment and conviction beforehand. Because the legislators believed that such a risk was very low…
Outside Mayor: If it’s an official act. Is it a public act?
Sauer: As you described the hypothesis, it’s very possible. I just don’t know. Again, it has to be a fact-specific, situation-specific judgment.
Sauer: The answer is, based on my testimony, it sounds to me like it’s a formal act. But that sure sounds bad, right?
Sauer: Well, that certainly sounds very bad. That’s why framers have used a series of successful structural checks over the past 234 years to thwart such extreme assumptions. And that is the wisdom of the framers. What they saw as a risk they needed to be wary of was the idea that in such an unlikely scenario, the president might escape criminal prosecution in a very, very unlikely way. They believed that the risks of sectarian conflict discussed by George Washington were more likely and more destructive to the republic.
Outside Mayor: The Framers did not put an immunity clause in the Constitution. they knew how. Some state constitutions had immunity clauses. They knew how to give legislative exemptions. They did not grant immunity to the president. And, you know, it’s not that surprising. They were rebelling against a monarch who claimed to be above the law. Isn’t the bottom line that the president is not a monarch and that he should not be above the law?
