During the recent hearing before the Supreme Court over presidential immunity, Trump attorney John Sauer shot down Justice Sotomayor’s attempt to bring down team Trump with a question about presidential immunity as applied to a “fraudulent slate” of electors. Sauer, instead of being intimidated by the question, managed to demolish her argument using facts from American history.
Posing the question, Justice Sotomayor asked Trump’s team, in the context of broad presidential immunity, “Apply it to the allegations here. What is plausible about the president assisting in creating a fraudulent slate of electoral candidates, assuming you accept the facts of the complaint on their face, is that plausible that that would be within his right to do?”
Essentially, her question was if Trump had the right to help establish an alternative slate of electors in states he appeared to have lost, as was done in 2020, and if his involvement in that process of creating so-called “fake electors” would be protected by presidential immunity.
Responding, Sauer explained the precedent for legitimate presidential involvement in such matters, saying, “Absolutely, your honor.” Sauer continued, “We have the historical precedent we cite in the lower courts of President Grant sending federal troops to Louisiana and Mississippi in 1876 to make sure that the Republican electors got certified in those two cases, which delivered the election to Rutherford Hayes.”
Continuing, Sauer explained that the argument that presidential involvement and immunity in such matters couldn’t ve conceived of as legitimate is “implausible” given American history. Doing so, he told Sotomayor, “The notion that is completely implausible, I think, just can’t be supported based on the faces of this indictment…”
Sotomayor then objected to that argument and, interrupting him, argued that this was different because Trump allegedly knew that the alternative elector slate was “fake” and not certified. She said, “Knowing that the slate is fake, knowing that the slate is fake, that they weren’t actually elected, that they weren’t certified by the state. He knows all those things…”
Sauer fired back, telling her that the idea the alternative slates of electors were “fraudulent” is a “complete mischaracterization.” He said, “The indictment itself alleges, I dispute that characterization. The indictment affixes the word label to the so-called fraudulent lectures. It fixes the word fraudulent, but that’s a complete mischaracterization.”
Continuing, he explained that the electors were alternatives, not deceitful, fraudulent electors. He told her, “On the face of the indictment, it appears that there was NO DECEIT about who had emerged from the relevant state conventions, and this was being done as an alternative basis.”
Listen to that argument here:
Kyle Becker, posting about the matter on X, noted, “Historical fun fact: Hawaii Democrats in 1960 submitted an alternate set of electors for JFK even though the Republican, Richard M. Nixon, had been declared the winner and the Governor had certified the Republican slate of electors. No one was ever charged or prosecuted.”
Featured image credit: By Pete Souza – https://www.flickr.com/photos/whitehouse/3567253753/, Public Domain, https://commons.wikimedia.org/w/index.php?curid=6900850
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