U.S. Supreme Court Justice Elena Kagan briefly stunned John Sauer, Donald Trump's attorney, by asking if the president could stage a coup.
The confrontation came Thursday during oral arguments before the high court about whether Trump enjoys presidential immunity for trying to overturn the results of the 2020 presidential election. Trump is fighting charges of election interference from special counsel Jack Smith.
Sauer repeatedly argued that the president could not be charged unless he was first impeached and convicted by the Senate.
"Well, he's gone," Kagan proposed. "Let's say this president who ordered the military to stage a coup, he's no longer president. He wasn't impeached. He couldn't be impeached. But he ordered the military to "That's immune?" Kagan pressed.
"I think it would depend on the circumstances whether it was an official act," Sauer said cautiously. "If it were an official act, again, he would have to be impeached...stage a coup, and you're saying that's an official act."
"What does that mean: depend on the circumstances?" Kagan asked. "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?"
Sauer argued there was a "very low risk" of the president staging a coup.
"If it's an official act, is it an official act?" Kagan asked again.
"If it's an official act, it's impeachment," Sauer stated.
"Is it an official act?" Kagan demanded.
"On the way you've described that hypothetical, it could well be," Sauer remarked. "I just don't know."
"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 observed.
"Well, it certainly sounds very bad, and 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," Trump's attorney said.
The question was met with silence from Trump's normally fast-talking lawyer.
