Taking wild speculation to an absurd extreme is not normally considered the proper role of journalists. But that didn't deter Jake Tapper from doing just that in an oh-so-solemn closing segment on CNN's State of the Union on Sunday morning.
Tapper keyed off a question that D.C. Circuit Judge Florence Pan had put to Donald Trump lawyer John Sauer in the claim Trump has made that he is immune from prosecution in the J6 case brought by special counsel Jack Smith. Sauer had argued that a president can only be subjected to criminal prosecution after he has been impeached by the House and convicted by the Senate for the conduct in question.
Pan asked Sauer whether that meant that if a president ordered Seal Team Six to assassinate a political rival, he could not be prosecuted for it unless previously impeached and convicted for it in the House and Senate. Sauer stood by his position, saying that impeachment and conviction would indeed be a prerequisite to a criminal prosecution. This was Tapper's clip:
FLORENCE PAN: Could a president who ordered Seal Team Six to assassinate a political rival, who was not impeached, could he be subject to criminal prosecution?
JOHN SAUER: If he were impeached and convicted first.
PAN: So your answer is, is no.
SAUER: My answer is qualified yes. There's a political process that would have to occur.
Pan presumably meant her question as the most extreme example possible, trying to put Sauer on the spot. But Tapper chose to take it literally. Tapper failed to note that Pan is an Obama-appointed and Biden-appointed federal judge. Tapper left out some of Sauer's argument. He cherry-picked. Here's how the Washington Post summarized:
D. John Sauer, representing Trump, insisted that for any crime connected to a president’s “official duties,” the “political process” of impeachment and conviction by the Senate “would have to occur” before prosecution. He predicted that if a president was involved in murder, he would be “speedily” impeached.
Tapper then proceeded with his butchered clip to fret that if Trump did order such an assassination, there wouldn't be enough Republican Senators voting to convict him. In Tapper's fevered imagination, the "no" votes would come from a combination of "ride-or-die" Trump supporters, and mainstream Republicans fearing for the safety or even lives of themselves and their families if they voted to convict Trump, as some members of Congress professed during the impeachment over the January 6 riot.
Tapper rolled a clip of Chris Christie recounting the story of Benjamin Franklin being asked by a woman, after the Constitutional Convention, "What kind of government did you give us?" And Franklin answering: "a Republic—if you can keep it."
Tapper, doing his best Edward R. Murrow imitation, portentously ended the segment by intoning, "can we?"
Note the glaring flaw in Tapper's logic. He claimed that if an insufficient number of Republican senators voted to convict Trump on his impeachment for ordering the assassination of a political rival, he could "escape prosecution."
But that would only be true if the D.C. Circuit Court, and potentially the Supreme Court on appeal, upheld Trump's theory of immunity requiring a prior impeachment and conviction on the relevant charges. All the members of the D.C. Circuit Court's three-judge panel expressed skepticism about the theory. It seems entirely unlikely that they will uphold Trump's claim of immunity. Would the Supreme Court overturn such a ruling? Despite the Court's current composition, that also seems unlikely.
So Tapper's scenario of Trump escaping prosecution for ordering a political assassination is the stuff of near-fantasy. But that didn't stop Tapper from playing it for all its melodramatic worth. We know Tapper writes novels in his spare time. But fiction isn't supposed to end his news/talk show.
Here's the transcript.
CNN
State of the Union
1/14/24
9:55 am ETJAKE TAPPER: In court, Trump and his lawyers are claiming that he cannot be charged because of presidential immunity. But at least one of the judges, Florence Pan, tried to put their argument to something of a stress test.
FLORENCE PAN: Could a president who ordered Seal Team Six to assassinate a political rival, who was not impeached, could he be subject to criminal prosecution?
JOHN SAUER: If he were impeached and convicted first.
PAN: So your answer is, is no.
SAUER: My answer is qualified yes. There's a political process that would have to occur.
TAPPER: The answer was, no. That person would not be prosecutable. To translate that from the legalese, Trump's lawyers are arguing Trump as president could order an assassination of a political rival using Seal Team Six without prosecution, unless he's first impeached by the House then convicted by the Senate.
And that prompts this question. If a President Trump were to order the assassination of a political rival using Seal Team Six, would a majority of the House of Representatives vote to impeach him? Would there be 67 U.S. Senators willing to vote to convict him?
Let's restate this. According to Trump and his team, he could use the U.S. military to assassinate a political rival, and he could escape prosecution if 34 senators, Republicans, were willing to acquit him for such an action.
. . .
It is not difficult to imagine Trump getting votes from his ride-or-die congressional supporters. The ones who helped pave the path for what happened on January 6th by mounting challenges based on these election lies.
But what about the others? Not ride-or-die. The mainstream Republicans. How would they vote? You remember what former Congresswoman Liz Cheney told me about why only ten House Republicans voted to impeach Trump in the House for his role in the insurrection?
LIZ CHENEY: There were Members who told me they were afraid for their own security. Afraid, you know, in some instances for their lives. And that tells you something about where we are as a country.
TAPPER: That's terrible.
CHENEY: Members of Congress aren't able to cast votes, or feel that they can't because of their own security.
TAPPER: In a recent book, Senator Mitt Romney shared similar anecdotes. Quote, one Republican congressman confided to him he wanted to vote for Trump's second impeachment but chose not to out of fear of his family's safety. Why put his wife and children at risk if it wouldn't change the outcome? A member Republican Senate leadership was talked out of voting to convict Trump in the Senate.Quote, you can't do that, Romney recalled someone saying. Think of your personal safety, said another. Think of your children. The senator eventually decided they were right, unquote.
Now, how do you think those fears might impact votes after this hypothetical assassination of a political rival? We're in a dangerous place right now as acountry. A major swath of the United States has lied to by Republican leaders and MAGA media such as Fox. People who know better, but who have bet on power versus principle.
. . .
Former New Jersey Governor Chris Christie looked out at Capitol Hill on January 7th, 2021, and he hated what he saw. And he hated the role he felt he had played in it. And he feared that what might come next would be worse.
CHRIS CHRISTIE: I remember what Benjamin Franklin said when he was walking down the street in Philadelphia after the Constitutional Convention, and a woman approached him on the street and said, Mr. Franklin, what kind of government did you give us? And he said to the woman, "a republic—if you can keep it."
TAPPER: Can we? Thanks for spending your Sunday morning with us.
