Trump attorney, Supreme Court justice clash on whether a president who ‘ordered’ a ‘coup’ could be prosecuted

An attorney for former President Donald Trump in the presidential immunity hearing clashed with Supreme Court Justice Elena Kagan over a hypothetical question on whether a president who “ordered” a “coup” could be prosecuted. 

“If it’s an official act, there needs to be impeachment and conviction beforehand,” Trump’s attorney John Sauer argued Thursday before the Supreme Court, which is being broadcast publicly via audio only. 

Sauer’s statement was in response to Justice Elena Kagan’s hypothetical question, asking if a president who is no longer in office directing the military to stage a coup would constitute an “official act.”

“He’s no longer president. He wasn’t impeached. He couldn’t be impeached. But he ordered the military to stage a coup. And you’re saying that’s an official act?,” Kagan asked.

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Justices of the US Supreme Court pose for their official photo at the Supreme Court in Washington, DC on October 7, 2022. – (Seated from left) Associate Justice Sonia Sotomayor, Associate Justice Clarence Thomas, Chief Justice John Roberts, Associate Justice Samuel Alito and Associate Justice Elena Kagan, (Standing behind from left) Associate Justice Amy Coney Barrett, Associate Justice Neil Gorsuch, Associate Justice Brett Kavanaugh and Associate Justice Ketanji Brown Jackson.  (OLIVIER DOULIERY/AFP via Getty Images)

“I think it would depend on the circumstances, whether it was an official act. If it were an official act, again, he would have to be impeached,” Sauer responded. 

“What does that mean? Depend on the circumstances? He was the president. He is the commander in chief. He talks to his generals all the time. And he told the generals, ‘I don’t feel like leaving office. I want to stage a coup.’ Is that immune [from prosecution]?” Kagan pressed.

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Former President Donald Trump exits Trump Tower in New York City, Monday, April 15, 2024. Jury selection begins today in the so-called hush money trial in Manhattan Criminal Court this morning. (Probe-Media for Fox News Digital)

Sauer responded it would “depend on the circumstances of whether there was an official act” if the hypothetical president would be immune from prosecution. 

“That answer sounds to me as though it’s like, ‘Yeah, under my test it’s an official act.’ But that sure sounds bad, doesn’t it?” Kagan said.

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“That’s why the framers have a whole series of structural checks that have successfully, for the last 234 years, prevented that very kind of extreme hypothetical. And that is the wisdom of the framers. What they viewed as the risk that needed to be guarded against was not the notion that the president might escape, you know, a criminal prosecution for something, you know, sort of very, very unlikely in these unlikely scenarios,” Sauer responded.

“The framers did not put an immunity clause into the Constitution. They knew how there were immunity clauses in some state constitutions. They knew how to give legislative immunity. They didn’t provide immunity to the president. And, you know, not so surprising. They were reacting against a monarch who claimed to be above the law. Wasn’t the whole point that the president was not a monarch and the president was not supposed to be above the law,” Kagan said. 

Justice Elena Kagan joined the Supreme Court in 2010 after being nominated by former President Barack Obama. (Reuters/Jonathan Ernst)

The back and forth came as the Supreme Court weighs whether Trump is immune from prosecution in Special Counsel Jack Smith’s election interference case. Smith’s case is currently on pause until the Supreme Court issues a ruling. The case charged Trump with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. The case stems from Jan. 6, 2021, when supporters of Trump breached the U.S. Capitol. 

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WASHINGTON, DC – AUGUST 01: Special Counsel Jack Smith arrives to give remarks on a recently unsealed indictment including four felony counts against former U.S. President Donald Trump on August 1, 2023 in Washington, DC.  (Drew Angerer/Getty Images)

Trump pleaded not guilty to all charges in August, and called on the Supreme Court to weigh whether a former president can be prosecuted for “official acts,” as the Trump legal team argues. 

The Supreme Court is expected to reach a resolution on whether Trump is immune from prosecution by mid-June. 

Trump is also part of an ongoing trial in New York City where he is accused of 34 counts of falsifying business records in the first degree. He pleaded not guilty to each charge. The trial prevented Trump from attending the Supreme Court hearing Thursday. 

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The NY v. Trump case focuses on Trump’s former personal attorney Michael Cohen paying former pornographic actor Stormy Daniels $130,000 to allegedly quiet her claims of an alleged extramarital affair she had with the then-real estate tycoon in 2006. Trump has denied having an affair with Daniels. 

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Prosecutors allege that the Trump Organization reimbursed Cohen, and fraudulently logged the payments as legal expenses. Prosecutors are working to prove that Trump falsified records with an intent to commit or conceal a second crime, which is a felony.  Prosecutors this week said the second crime was a violation of a New York law called “conspiracy to promote or prevent election.”

Fox News Digital’s Brooke Singman contributed to this report.