President Donald Trump’s nominee to be solicitor general told the Senate Judiciary Committee Wednesday that presidents might rightfully defy court orders in “extreme cases.”
“Generally, if there’s a direct court order that binds a federal or state official, they should follow it,” D. John Sauer said at his confirmation hearing, in response to questioning by Sen. Dick Durbin (D-Ill.), the committee’s ranking member.
When Durbin questioned whether Sauer could envision an exception, Sauer replied by citing two Supreme Court decisions that were eventually overturned: a 1944 decision that upheld the constitutionality of the internment of Japanese civilians during World War II and the 1857 decision that upheld slavery.
“I suppose you could imagine hypotheticals in extreme cases like the Korematsu decision, the Dred Scott decision,” he said.
Referring to the Korematsu case, Durbin responded: “As bad as it was, that court order was followed for years, was it not?”
“I just wonder whether some historians might think we’d be better off if it hadn’t been followed,” Sauer said.
If confirmed as solicitor general, Sauer will be the top Justice Department lawyer representing the Trump administration at the Supreme Court. He previously was one of Trump’s personal lawyers, most notably arguing the case last year in which the high court granted Trump broad immunity in one of the federal criminal cases brought against him.
Sauer also declined Wednesday to provide a concrete answer to a question by Sen. Adam Schiff (D-Calif.) regarding an argument Sauer made during the immunity litigation.
Sauer argued to a federal appeals panel that a president who ordered SEAL Team 6 to assassinate a political adversary could be criminally prosecuted only if he were first impeached and convicted by the Senate.
If Trump were to order the use of violence against a political opponent, Schiff asked, “Will that continue to be your position as a lawyer for the United States? Will you represent to the court that any prosecution should be dismissed if the president is not first impeached?”
Sauer didn’t provide a direct response, instead saying: “The hypothetical you’ve offered, respectfully, is so outlandish, I don’t know if I’m positioned to address it.”
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