How Judge Pan Skewered Donald Trump’s Lawyer in Court

The line of questioning from one of the judges involved in the hearing on whether Donald Trump can cite presidential immunity to dismiss the federal election case against him has been praised by legal experts.

Judge Florence Pan, who was nominated to the U.S. Court of Appeals for the D.C. Circuit bench by President Joe Biden, was part of the three-judge panel that heard legal arguments on Tuesday if Trump can claim he is immune from federal prosecution in Special Counsel Jack Smith’s investigation, as the allegations relate to his time in the White House.

Trump, the frontrunner in the Republican presidential primary, has pleaded not guilty to four charges in connection to allegations he illegally tried to overturn the 2020 election. The former president is appealing to have the case dismissed while arguing his actions investigating false voter fraud claims fall under his presidential duties and, therefore, he can claim absolute immunity.

Federal prosecutors have said committing crimes do not fall under a president’s duties, nor can Trump continue to cite presidential immunity now that he is no longer in office.

During Tuesday’s hearing, Trump’s attorney, D. John Sauer, argued that a sitting president can be prosecuted for crimes committed while in office, but only if they are impeached and convicted by Congress first. Trump was impeached for the second time in 2021 for allegedly inciting the January 6 attack but was later acquitted by the Senate.

Writing for The Atlantic, George Conway, a lawyer and frequent critic of Trump, said that Sauer had “unwittingly set a nasty trap for himself” by arguing that a president must first be convicted by the Senate before they can face criminal prosecution.

“A trap that Pan’s brilliant interrogation shut tight,” Conway said. “The judge wasted no time in drilling into the implications and inconsistencies in Sauer’s position.”

Pan asked Seuer whether, under his argument, a sitting president could order SEAL Team Six to assassinate a political rival and not face prosecution unless he is convicted by the Senate. In this hypothetical scenario, the president could also resign from office before he is impeached, potentially escaping prosecution under Sauer’s reasoning.

“Sauer, realizing he was being cornered somehow, tried to avoid the door closing behind him. But Pan was having none of it. Like the experienced prosecutor she is, she insisted on an answer and wasn’t going to let go,” Conway, the estranged husband of former Trump White House counselor Kellyanne Conway, wrote.

“[Pan] and Sauer went around and around on this a few more times. But the damage was done, and Pan’s point was devastatingly made—in essence, that Sauer was arguing out of both sides of his mouth. On the one hand, Sauer argued that the Constitution gave the president absolute immunity for his official acts, lest we have political prosecutions of former presidents,” Conway said.

“On the other hand, if the United States Congress—a political body if ever there was one—effectively gives permission (by impeaching and convicting), well, then, yes, a president can be prosecuted, and—wait for it—he’s not absolutely immune,” Conway added.

Newsweek reached out to Trump’s legal team via email for comment.

Elsewhere, Joyce Vance, a former federal prosecutor and legal analyst, said that Sauer “seemed flustered” by the end of his exchange with Pan.

“The best he had to offer was that the Founding Fathers were concerned about the possibility of politically motivated prosecutions, so they would have limited prosecution of presidents. Pan explained her reasoning to him: once he conceded there isn’t unlimited absolute immunity, the argument isn’t that his client can’t be prosecuted, it’s just about when his client can be prosecuted,” Vance wrote on her Civil Discourse blog.

“You’re arguing there is absolutely immunity, she told him, that the judiciary can never sit in judgment on a president. But you’re conceding that’s not true.”

Vance said that Pan “went in for the kill” to dismiss Sauer’s argument that all acts performed under presidential duties are immune from prosecution by asking if a sitting president could conceivably offer a pardon in exchange for money or sell state secrets to other countries while in office and not face prosecution.

In a post on Truth Social, Trump said that if a former president could face prosecution for acts committed in office, then the courts would be “opening the floodgates” for others.

“AN OPPOSING HOSTILE PARTY WILL BE DOING IT FOR ANY REASON, ALL OF THE TIME!” Trump wrote.