Appeals Court Nominee Won't Say the President Can't Murder Opponents

Jennifer Mascott (image posted to her Twitter feed)

By Thomas Neuburger

Pursuant to our discussion (“We Just Crowned a King. What Next?”) of the president’s new-found absolute immunity when he performs an Article II duty, we offer this confirmation.

Catholic University professor Jennifer Mascott was recently nominated by President Trump for a seat on the Third Circuit Court, which covers Pennsylvania, New Jersey and Delaware. A Circuit Court judge is a fine position to have if you want a Supreme Court appointment.

According to Alliance for Justice, a progressive judicial-watch group founded by Nan Aron:

Throughout her academic scholarship, congressional testimony, and legal briefs, Mascott consistently argued for stripping agency regulatory authority and misapplied separation-of-powers arguments to advance an authoritarian executive. [Emphasis mine; full report here.]

As a result of this appointment, Mascott came up to the Senate for questioning. There she was asked:

Question: “Would the president be immune from prosecution if he ordered SEAL Team Six to assassinate a political opponent? Yes or no?”

And her answer:

Mascott: “Senator, under the Supreme Court precedent on that question, the Supreme Court has specifically not answered it.”

In other words, yes, he could be immune if the murder was an “official act” — like saving the country, say, “keeping us safe,” from a government-designated terrorist.

Murders and Coups, Oh My!

Not a small matter. Oral arguments before the Supreme Court in Trump vs. United States covered exactly this point:

JUSTICE SOTOMAYOR: … If the president decides that his rival is a corrupt person and he orders the military or orders someone to assassinate him, is that within his official acts that -- for which he can get immunity? MR. SAUER: It would depend on the hypothetical. But we can see that could well be an official act.

“It would depend…”

According to Sauer, the lawyer for plaintiff Trump, the same standard would apply to a presidentially organized coup (emphasis mine):

JUSTICE KAGAN: ... 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 -- but he ordered the military to stage a coup. And you're saying that's an official act? MR. SAUER: I think it would depend on -- JUSTICE KAGAN: That's immune? MR. SAUER: 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 and convicted. … If -- if it's an official act, there needs to be impeachment and conviction beforehand because the Framers viewed the risk -- the -- […] JUSTICE KAGAN: Is it an official act? MR. SAUER: On -- on the way you've described that hypothetical, it could well be. I -- I just don't know. You'd have to -- again, it's a fact-specific, context-specific determination that it's contemplating.

These are Trump’s beliefs; these are Mascott’s beliefs; and they’re the Court’s beliefs, since in Robert’s majority opinion, it refused to shut that door.

It’s a Republican Senate. Mascott will be confirmed.

Welcome to the Fourth American Constitution. We’re going there, folks.