BREAKING: Attorneys for Trump, Biden clash in DC court over claims of presidential immunity

Judge Florence Pan asked Trump attorney D John Sauer whether a president is immune "from criminal prosecution for any official act that he takes as president, even if that action is taken for an unlawful or unconstitutional purpose? Is that correct?"

Sauer responded that prosecution is authorized after impeachment.

Pan said that it "seems to me that there are a lot of things that might not go through that process," asking whether a president could "sell pardons or sell military secrets."

"Those are official acts, right? It’s an official act to grant a pardon. It’s an official act to communicate with a foreign government, and such a president would not be subject to criminal prosecution?"

Sauer responded that "as long as it’s an official act," citing an example of President Clinton’s pardon of Marc Rich and how the DOJ decided not to prosecute Clinton for that.

Pan posed as a hypothetical, "the president ordered SEAL Team Six to assassinate a political rival. That’s an official act, an order to SEAL Team Six."

Sauer said that the president would have to be "impeached and convicted before the criminal prosecution."

Pan later questioned, "yes or no question, could a president who ordered SEAL Team Six to assassinate a political rival [and] was not impeached, could he be subjected to criminal prosecution?"

Sauer said only if the president is impeached and convicted first, later explaining "the answer is qualified yes," explaining that there is a process set in place in such a circumstance for a speedy impeachment.

"But what the founders were much more worried about, and using criminal prosecution to discipline presidents was what James MAdison calls in Federalist number 47 the, you know, the newfangled and artificial treasons, they were much more concerned about the abuse of the criminal process for political purposes to disable the presidency from factions and political opponents. Of course, that’s exactly what we see in this case," Sauer added.

Sauer later added that Article II of the US Constitution states that the President’s official acts are "never examinable by the courts."

Stating that Sauer had conceded "that presidents can be criminally prosecuted under certain circumstances," Pan asked, "doesn’t that narrow the issues before us" to whether a "president can be prosecuted without first being impeached and convicted?"

"Your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances."

Sauer responded, "the Constitution makes a carefully balanced, explicit exception to that principle in the impeachment judgement clause. So the problem for the separation of powers, the Constitution does this and many other situations where it engages in a balancing, what the framers were most concerned about was not the notion that the president would never be prosecuted for things that outrages political opponents, what they were concerned about was politically motivated prosecutions."

"But what they didn’t say is the president can never be prosecuted. They set up the separation of powers and then created a very narrow exception that will allow prosecution in those cases."

Sauer later added that "The notion that criminal immunity for a president doesn't exist is a shocking holding. It would authorize for example, the indictment of President Biden in the Western District of Texas after he leaves office, for mismanaging the border allegedly and let a Texas jury and a Texas judge sit in judgment over the validity of it."

Judge Julianna Childs cut in, saying it was stated "earlier that when there were pardons or when people were not prosecuted, not everybody goes through an impeachment proceeding before they actually get prosecuted because that's within the discretion of the prosecutor."

"Only for subordinate officers," Sauer responded.

Attorney James Pearce for Biden’s Department of Justice argued that "the president has a unique constitutional role, but he is not above the law. Separation of powers principles, constitutional text, history, precedent, and other immunity doctrines all points to the conclusion that a former president enjoys no immunity from criminal prosecution."

"At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognize some novel form of criminal immunity."

Judge Karen Henderson asked Pearce, "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."

Pearce responded that "I think there is a political process, which is impeachment, and we can talk about that, but there is a legal process which is decidedly not political."

"And that process which has the kinds of safeguard that a couple of members of the court here have already referred to … but I also want to push back a little bit against this idea of a floodgate."