Trump’s Boldest Argument Yet: Immunity From Prosecution for Assassinations

Eight years ago, just before the Iowa caucuses, Donald J. Trump crowed about his invulnerability.

“I could stand in the middle of Fifth Avenue and shoot somebody, and I wouldn’t lose any voters, OK?” he said. “It’s, like, incredible.”

On Tuesday, at a federal appeals court argument held the week before this year’s caucuses, a lawyer for Mr. Trump said that the Constitution basically states the same thing.

It took a few questions from Judge Florence Y. Pan to pin down the lawyer, D. John Sauer. But in the end he made the jaw-dropping claim that former presidents are absolutely immune from prosecution even for murders they ordered while in office.

“I asked you a yes-or-no question,” Judge Pan said. “Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?”

Mr. Sauer said his answer was a “qualified yes,” by which he meant no. He explained that prosecution would only be permitted if the president were first impeached by the House and convicted by the Senate.

Impeachments of presidents are rare: There have been four in the history of the Republic, two of them of Mr. Trump. The number of convictions, which require a two-thirds majority of the Senate: zero.

A member of Congress might be reluctant, in any event, to vote against a president prepared to order the military to murder his opponents.

Mr. Sauer’s answer instantly entered the annals of candid concessions that helped doom an argument. It was reminiscent of a government lawyer’s statement, at the first argument in the Citizens United campaign finance case, in 2009, that Congress could in theory ban books urging the election of political candidates.

“That’s pretty incredible,” Justice Samuel A.