Paralyzed presidents

Sauer argued that the threat of criminal prosecutions would potentially paralyze presidents, keeping them from acting on close calls and allowing de facto extortion for avoiding prosecution out of office.

Sauer told the justices that prosecuting Trump could open the door to prosecuting former presidents for misleading Congress, drone strikes abroad or even current President Joe Biden for “inducing” immigrants to cross the border.

Justice Ketanji Brown Jackson said the court should also guard against establishing unrestricted presidents who know they would not be prosecuted for obstruction of justice, destroying evidence and more.

“I’m trying to understand what the disincentive is from turning the Oval Office into, you know, the seat of criminal activity in this country,” Jackson said.

Sauer responded that there are structural checks on the presidency, including impeachment and the fact that his subordinates can still face criminal prosecution. He argued that many official acts of the commander in chief are beyond reproach in court.

That faced questions from Justice Amy Coney Barrett, who asked whether a president could be prosecuted for ordering a coup after being impeached and removed from office.

“There would have to be a statute that made a clear statement that Congress purported to regulate the president’s conduct,” Sauer said.

Chief Justice John G. Roberts, Jr., also pointed out that trying to separate official acts from unofficial ones could cripple efforts to prosecute crimes like bribery.

Removing any allegations of “official acts” would create a “one-legged stool,” Roberts said — prosecutors could not prove a quid pro quo without mentioning the official act the bribe was for.

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