If he were impeached and convicted first, and so- I'd say your answer is- Is it? No. My answer is qualified. Yes, there's a political process that have to occur

on- And that question pressed repeatedly by Judge Florence Pan was just one of the tough questions that Donald Trump's lawyer faced at the D.C. Appellate Court today. All three judges on the panel seem skeptical of Trump's claim that he's immune from criminal prosecution for trying to overturn the 2020 election because he was president at the time.

It's the notion that criminal immunity for a president doesn't exist as a shocking holding. They would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mis-managing the border allegedly.

Trump's attorney John Sauer argued that a president can only be criminally prosecuted after Congress has voted to both impeach and convict him on similar charges. Judge Michelle Childs didn't find that argument particularly convincing.

But not everybody goes through that process. Of course, it's limited to the certain actors in that regard, but not everybody has to go through that process. Prosecutors later on can come into information and evidence after they've investigated to make their determinations about what they'd like to permanently prosecute. So you're not always confined to whatever would be in the impeachment judgment clause. Whatever the practice has been with respect to support and officers, the evidence for the founding generation is clear as you cannot do that with respect to the police.

My guest is Michael Gerhard, a professor at the University of North Carolina Law School and an expert on impeachment. In fact, his new book is called The Law of Presidential Impeachment. It seemed like the focus of the argument for Trump's lawyer was that under the Constitution's impeachment clause, a president can't be prosecuted unless he's first impeached and convicted over the same charges. Tell me about that argument and what you think of it. It's really dumb. It's not a good argument. There are three judges in the late 1980s that all faced impeachment and all three were actually tried criminally before they were impeached. And they raised that argument back in the late 1980s in courts reject. There's no constitutional requirement that impeachment perceived a criminal investigation or that a criminal investigation perceived an impeachment there. There's separate proceedings. It's just that simple. So then where did they get that argument? Did they make it up out of whole cloth? I think they largely made it up. I think it's designed in part to delay things. That's first. Secondly, I think it is probably, and this might be the best characterization of it, it might be loosely based on some constitutional language that seems to leave an inference after an impeachment that officials could still remain liable at law, but that's not a command. That's just basically suggesting that after impeachment there could be separate legal proceedings. But I would also maybe suggest third, but I think it's just another variation of Trump's arguments which date back to his presidency that he, kind of the other president, but he at least is above the law. That led to some really startling hypotheticals. Judge Florence Pan asked, if a president ordered SEAL Team Six to assassinate a political rival, could he be criminally prosecuted? When Trump's lawyer seemed reluctant over and over again, she tried to press him, yes or no, yes or no, he seemed reluctant to even make a concession there. Well, I think that he was in a sense arguing from a corner, so he was already backed in, and I think he thought maybe his best option was just to take a hard line, but I think that question among others sort of underscores the absurdity of Trump's argument. Did you see any inkling that any of the judges were buying that particular argument? I did not, but that may not mean very much. There's not always a complete overlap between what happens in oral argument and what comes out of an opinion. So lawyers tend to take with a grain of salt, all the questioning in oral argument because lawyers understand it may not necessarily lead to the predict exactly what the need opinion might look like, but I think before there was any argument, I and other scholars who sort of studied this area thought Trump's arguments were probably at best a week, it's not absurd, and I think that the judges at least appear to have so far taken a similar sort of approach. So before the argument, I had understood, did the lawyer concede that then Trump does not, that if his premise is correct about the impeachment clause, that Trump does not have absolute presidential immunity? Was that conceded by him at all? I couldn't tell. I don't know that the lawyer made any such concession, but the lawyer's argument, if you kind of think about them, practically speaking, the lawyer's arguments in this oral argument today is as sane as they were all throughout Trump's presidency, and that is that Donald Trump is somehow above the wall, but there's no way to hold Donald Trump accountable for anything. I expected more discussion of whether Trump's actions on January 6 were part of his official duties or discretionary. What did you hear about that particular issue? I was a little surprised that that wasn't pressed more so by Trump's lawyers, not because it was a good argument, but just because it's an argument that could make. So I think that I don't want to read too much in the silences on either side, but it strikes me as possible that Trump's lawyers may have recognized that they'd have to draw a line at some point about where official duties end. They can't argue that official duties are boundless because it's been what has rejected that and more than more. And I think that Trump's lawyers probably were reluctant to therefore to engage with this issue because they don't want to draw that line. There was one thing that I think one or two of the judges picked up on. Judge Karen Henderson expressed concern that a ruling saying the president doesn't have immunity would lead to politically driven prosecutions of future presidents. How do

we write an opinion that would stop the floodgates? Your predecessors in their OLC opinions recognize that criminal liability would be unavoidably political.

Which side had the better of that argument? Well I think that question really has been answered already about the United States Supreme Court. They answered it in a case called Trump versus Vance. And in that Supreme Court case, the Supreme Court ruled that a president, in Trump's case then, a sitting president, may be subject to state criminal prosecution. Trump tried to argue in that case, oh, the president could then be subject to all sorts of partisan prosecutions. The Supreme Court rejected that because the court said they're all sorts of safeguards against that. So it's not really going to be a real or practical concern because if that's the motivation, again, if it's in federal court, federal judges could obviously try to not just look behind it, but so could state judges. And ultimately, the state prosecution of somebody let's say who used to be president is still constantly appealable to the United States Supreme Court, which is a whole other state guard that could exist. So there's no reason to think that the possibility of a prostitution means there may never be a prostitution. Well, Trump suggested on Monday that if the court doesn't rule in his favor and he wins the presidential election, he'd have Joe Biden indicted. So we'll see what happens there. Not a good thing I think because presidents shouldn't be making that decision. Stay right there, Michael. We'll discuss more about the contours of any decision coming up next. And Donald Trump was actually in the courtroom for the oral arguments and had some comments afterwards.

And I think we're doing very well. I think it's very

unfair

when a opponent, a political opponent is prosecuted by the DOJ, by Biden's DOJ. So they're losing in every poll. They're losing in almost every demographic. Numbers came out today that are really very mind-boggling if you happen to be Joe Biden. And I think they feel this is the way they're going to try and win. And that's not the way it goes. It'll be better than in the country. It's a very bad thing. It's a very bad precedent. As we said, it's the opening of a Pandora's box. And it's a very sad thing that's happened with this whole situation.

I'm June Gross, and you're listening to Bloomberg. From Wall Street to Main Street and from Hollywood to Washington, the news is filled with decisions, turning points, deals, and collisions. I'm Tim O'Brien, the senior executive editor for Bloomberg Opinion. And I'm your host for Crash Course, a weekly podcast from Bloomberg and iHeartRadio. Every week on Crash Course, all bring listeners directly into the arenas where epic upheavals occur. And I'm going to explore the lessons we can learn when creativity and ambition collide with competition and power.

Each Tuesday,

I'll talk to Bloomberg reporters around the world, as well as experts and big names in the news. Together, we'll explore business, political, and social disruptions, and what we can learn from them. I'm Tim O'Brien, host of Crash Course, a new weekly podcast from Bloomberg and iHeartRadio. Listen to Crash Course every Tuesday on the iHeartRadio app, Apple Podcasts, or wherever you get your podcasts. Never in our nation's history can help this case as a president claimed that immunity and criminal prosecution extends beyond his time in office. The president has a unique constitutional role, but he is not above the law. Separation of powers principles, institutional texts, history, precedent, and other immunity doctrines all point to the conclusion that a former president

enjoys no immunity from

criminal prosecution. James Pierce, a lawyer working with special counsel Jack Smith, explained to the D.C. Appellate Court today why former President Donald Trump is not immune from prosecution for his attempt to overturn the 2020 election in his final days as president. Trump was in the PAC courtroom listening even though he was not required to be there. The panel of three judges, two Biden appointees and one George W. Bush appointee, appeared very skeptical about Trump's claim that he has presidential immunity from the criminal charges brought by the special counsel. And his attorney John Sauer appeared to be caught by the judge's questions several times, particularly when judges Karen Henderson and Florence Pan noted that the lawyer who represented Trump during his 2021 impeachment trial had in fact suggested that he could later face criminal prosecution. It did

not say there could never be raised immunity defense. It said criminal process can go forward. There's a quote in the congressional record in which your counsel, I'm sorry, your client said through counsel, no former officeholder is immune from investigation. There's no need to. Well, that may be true of subordinate officers, but as to the principal office, the president is immune unless he is impeached and connected again. It comes back to the point. He was president at this time and his position was that no former officeholder is immune. And in fact, the argument was there's no need to vote for impeachment because we have this backstop, which is criminal prosecution. It seems that many senators relied on that voting to acquit.

Trump is trying to get the panel to reverse a ruling by federal trial judge, Tanya Chutkin, who rejected Trump's immunity defense and suggested he was seeking the power of a monarch. I've been talking to Michael Gerhard, a professor at the University of North Carolina Law School. So the special counsel and judge Michelle Child pointed to the fact that Richard Nixon was pardoned upon leaving office to show that it's been assumed that presidents can be prosecuted after leaving office. Is that much of a legal argument, though? I think it's a perfectly good argument because what it's doing is it's trying to ensure that whatever the court does now is going to make sense of the whole system as we've understood it up until now. And so the pardon of Nixon presumed that Nixon could be criminally prosecuted for things he had done as president. That presumption cuts directly against Trump's arguments right now. And by the way, that's not from a Democratic president. There was a question at the beginning of jurisdiction, and it wasn't raised by either of the parties. And it seemed like neither of the parties wanted to endorse it, but it was by an amicus brief that Trump doesn't have the right to make the request before trial. What's known as an interlocutory appeal? Would you explain that and where you think they came out on that? Sure. Well, a jurisdictional issue has to do with whether or not the court or a court has the power to do something. So a jurisdictional issue may be raised at any time, and it may be raised by the court itself. The court doesn't have to rely on the parties to a case because the court's always going to be concerned with do we have the power to decide this case or even hear this case. And an interlocutory appeal is an appeal that could be made before the end of the case. So an appeal could be made to some higher court based on some concern, and they may be so upbeat that it could be raised before there's actually been a trial or before there's even been conviction or the case is not yet over. I think the court was reasonable on raising this question. The fact that neither side could really address it well might suggest that neither side has thought about it very much. But what is clear is that Trump is trying to raise this now before he's gone to trial much less having been convicted. And so that raises a question that's in my mind, not so much about whether there should be an interlocutory appeal, but it's a special appeal right now. But what we call a whiteness issue is the issue really right as an attorney to the point where a court should decide it. And rightness may also become a concern for the appellate court as well. Yeah. So there are a lot of things the appellate court could do. They could say they don't have jurisdiction at this point. I mean, they could go just based on the Constitution's impeachment clause and Trump's argument there. Yes. I mean, of course, they could craft this anyway they like. I think, generally speaking, it has long been understood and I would even argue well settled that there's no what we'll call double the jeopardy problem with having an impeachment on the one hand in a criminal process on the other. They are two separate proceedings and an impeachment proceedings is not a criminal proceeding. So double jeopardy clause, meaning you can't bring two criminal prosecutions to the same misconduct doesn't apply because impeachment is not a criminal process. Beyond that, I think that the court has to be thinking among other things about what kind of precedent are we going to establish here. And if I had to guess, my guess would be that the courts going to not want to establish a precedent that makes it easier for presidents to be above the wall. The bottom line is Trump's going to face criminal trial and he can't avoid that. What's the best argument of all the arguments Trump made? What's the best of them? I confess, I'm not sure any of them are any good. And I mean, it's seriously, I mean, I've studied this for decades. I think these arguments are they've all been raised to some extent in the past. They all have been rejected or found in lack of credibility by historians. So I confess, I get think of one. And so Trump's lawyer asked for a stay of the opinion so that they can appeal. So if they appeal to the full DC Circuit, ask for an on bank hearing. Do you think the DC Circuit would take that on bank? Well, I don't know the answer. I'm not sure why the full DC Circuit needs to hear this. I think that's another move by Trump's lawyers to delay everything, sort of to throw a lot of legal process at the proceedings against him as a way to kind of delay them in the hopes, I suppose, that Trump will win the presidency and pardon himself or that one of his backlights will win the presidency and pardon him. But the courts, I think, are aware of the possibility that they're being used here. And generally speaking, courts don't like to be used in that manner. Everyone assumes that this is going to be appealed to the Supreme Court no matter what happens. And a lot of legal experts are predicting that the court will take the case. But is that necessarily true? No. Let's say, for example, this current panel concludes that none of Trump's arguments are credible and the court rejects all of them. The Supreme Court could simply reject any appeal based in part on the justices considering there's no real issue here. We have to decide because what the panel would have concluded is consistent with whatever courts have said before. So there's no compelling reason why the U.S. thing or it needs to be used in a meeting at this point. But the other thing I might just raise at this point is to just make note of the fact that Trump is still trying to argue that as a former president, he has some kind of special immunity. The sitting president may not be immune to criminal process.