Trump taps lawyer who argued his immunity case for solicitor general

SCOTUS NEWS

D. John Sauer argued on behalf of Donald Trump before the Supreme Court in April’s Trump v. United States. (William Hennessy)

President-elect Donald Trump announced on Thursday that he intends to nominate D. John Sauer, who successfully argued in the Supreme Court earlier this year that Trump is entitled to broad immunity from prosecution, to serve as the solicitor general of the United States.

Trump made the announcement in a statement on Thursday evening, calling Sauer a “deeply accomplished, masterful appellate attorney.”

The 50-year-old Sauer has many of the credentials associated with others who have served as the country’s top lawyer before the Supreme Court. A Rhodes Scholar and a graduate of Harvard Law School, he clerked on the U.S. Court of Appeals for the 4th Circuit for Judge J. Michael Luttig, a conservative star who has since become an outspoken critic of the president-elect. Sauer then went on to clerk for the late Justice Antonin Scalia and spent five years as a federal prosecutor.

In 2017, Sauer became the solicitor general of Missouri, a job he held for six years – and one that allowed him to take conservative, and sometimes controversial, positions.

During that time, he made his first appearance as an advocate before the Supreme Court. In Bucklew v. Precythe, he successfully defended the state’s lethal injection protocol against a challenge by an inmate who argued that executing him would violate the Eighth Amendment’s ban on cruel and unusual punishment because of the likelihood that he would end up choking on his own blood.

In December 2020, Sauer led a group of states in filing a “friend of the court” brief supporting Texas’s unsuccessful efforts to overturn the results of the 2020 election in four battleground states won by Joe Biden. Sauer wrote that Texas’s allegations “raise important questions about election integrity and public confidence in the administration of Presidential elections,” but the justices concluded that Texas lacked a legal right, known as standing, to bring its case.

And in 2022, Sauer (along with nine other states) challenged the Biden administration’s COVID vaccine mandate for workers in federally funded healthcare facilities. The Supreme Court declined to take up his petition for review.   

After stepping down as Missouri’s solicitor general, Sauer formed his own law firm, the James Otis Law Group. James Otis was a Massachusetts defense lawyer and legislator whom Smithsonian Magazine describes as “one of the most influential protesters against Britain’s colonial laws.” The magazine also observed that although Otis is often credited with coining the phrase “Taxation without representation is tyranny,” it is an “overstatement” to do so. (Otis largely disappeared from public life in the early 1770s due to mental health issues.)

In private practice, Sauer has continued to litigate hot-button issues. Last term he represented Louisiana in its unsuccessful effort, joined by Missouri, to limit the government’s ability to communicate with social media companies about their content moderation policies. And he currently represents state officials defending an Arizona law that bars transgender women and girls from competing in college and school sports.

But it was no doubt his work for Trump himself that helped Sauer to secure the job. Although Trump lost in the U.S. Court of Appeals for the District of Columbia Circuit in February, he appealed to the Supreme Court, which agreed to take up his case and heard oral argument in late April. By a vote of 6-3, the court ruled that former presidents have broad immunity from criminal prosecution for their official acts, and they sent the election-interference charges against Trump back to a federal trial court in Washington, D.C., for U.S. District Judge Tanya Chutkan to take another look at the charges against Trump. With Trump’s victory at the polls this month, Special Counsel Jack Smith has signaled that he will wind down the prosecution and step down before Trump takes office.

Trump’s announcement that he intends to nominate Sauer came shortly after Trump revealed that he also intends to nominate Todd Blanche, a criminal defense attorney who represented the president-elect at his state criminal trial in New York for falsifying business records, as deputy attorney general, the second-highest-ranking job in the Department of Justice.

This article was originally published at Howe on the Court.