Trump lawyer tells SCOTUS that president could have immunity after ordering military to assassinate a political rival

Sauer argued it could.

"It would depend on the hypothetical," Sauer said. "We can see that could well be an official act."

Sotomayor interjected, "It could, and why? Because he's doing it for personal reasons."

"And isn't that the nature of the allegations here, that he's not doing these acts in furtherance of an official responsibility, he's doing it for personal gain?" Sotomayer asked.

Sauer followed up, "I agree with that characterization of the indictment and that confirms immunity."

Sauer and the justices spent some time Thursday morning debating whether certain hypothetical situations would be considered "private acts" or "official acts" under Sauer's argument, which asks the high court to grant Trump sweeping legal immunity for all of his "official" conduct.

Michael Dreeben, representing the Justice Department as part of Special Counsel Jack Smith's team, told the judges to reject Sauer's interpretation of presidential immunity, which he said would be a departure from how it has been historically understood.

Prosecutors have also argued that the indictment — on whether Trump broke criminal laws by attempting to overturn the 2020 presidential election he lost — should move forward anyway, because the effort was for private gain.

The same hypothetical, over whether the president can use his position as commander-in-chief to order the military to assassinate a domestic political rival, also came up in the appeals court hearing for the case. Sauer told the federal appeals court that impeachment from Congress would be the proper remedy if a president ordered SEAL Team Six to kill a rival politician, not a criminal indictment.

Justice Samuel Alito said later in the hearing that it was "not plausible" that it would be legal for military officers to conduct such an assassination, and seemed upset at the prospect.

"One might argue that it is not plausibly legal to order SEAL Team Six — and I don't want to slander SEAL Team Six because, seriously, they are honorable," Alito said to some chuckles in the courtroom. "They are bound by the uniform code of military justice not to obey unlawful orders."

The justices may reconsider the scope of presidential power

At the outset, Saur argued before the nine justices of the Supreme Court, "Without presidential immunity from criminal prosecution, there can be no presidency as we know it."

"If a president can be charged, put on trial, and imprisoned for his most controversial decisions as soon as he leaves office, that looming threat will distort the president's decision-making precisely when bold and fearless action is most needed," Saur said.

Saur continued, "Could President George W. Bush have been sent to prison for obstructing an official proceeding or allegedly lying to Congress to induce war in Iraq? Could President Obama be charged with murder for killing US citizens abroad by drone strike? Could President Biden someday be charged with unlawfully inducing immigrants to enter the country illegally for his border policies?"

"The answer to all these questions is no," he said.

Impeachment and conviction, Sauer said, would be the first step before a potential prosecution, even if a president sold "nuclear secrets to a foreign adversary" — a hypothetical situation that Justice Elana Kagan asked about.

Saur argued that if it were "structured as an official, he would have to be impeached and convicted first."

After Sauer answered questions from the court, Justice Department lawyer Michael Dreeben told the justices that the high court has never recognized absolute criminal immunity for any public official.