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- Trump's team has claimed he has immunity from criminal prosecution over his actions when he was in office.
- An appeals-court judge stress-tested that argument Tuesday by posing a series of wild hypotheticals.
- Trump's lawyer said a president couldn't be prosecuted over an assassination if Congress were OK with it.
Former President Donald Trump's attorney on Tuesday argued that a president could order the assassination of his political rival and couldn't be prosecuted for it — unless Congress impeached and convicted that commander in chief first.
Trump's lawyer made the argument in a contentious appeals-court hearing Tuesday in the special counsel Jack Smith's election-interference case against the former president.
Trump's legal team has repeatedly argued that the ex-president has "absolute immunity" from criminal prosecution related to his acts while in office (a claim many legal experts reject).
But Judge Florence Pan, one of three judges on the Washington, DC, appeals-court panel, tested that argument at length when she posed a series of hypotheticals to Trump's lawyer D. John Sauer.
Pan wondered whether, according to the Trump team's argument, a president could be held criminally accountable for selling pardons or military secrets if he wasn't impeached and convicted by Congress for it.
"Your position is that he can't be prosecuted for that unless he's impeached?" Pan said.
"Yup, as long as it's an official act," Sauer said.
Then Pan took it a step further.
"Could a president order SEAL Team Six to assassinate a political rival?" she said. "That's an official act: an order to SEAL Team Six."
"He would have to be, and would, speedily be impeached and convicted before the criminal prosecution — " Sauer began, but Pan cut him off.
"But if he weren't, there would be no criminal prosecution, no criminal liability for that?" she said.
Sauer reiterated that a president would first have to be impeached by the House of Representatives and convicted by the Senate before he could be criminally charged for any acts related to his office. He started to discuss the position of the Founding Fathers before Pan cut him off again.
"I asked you a yes or no question," the judge said. "Could a president who ordered SEAL Team Six to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?"
"If he were impeached and convicted first, and so — " Sauer began.
"So your answer is no," Pan said.