Washington, DC Judges in a federal appeals court on Tuesday questioned former president Donald Trump’s wide claim of immunity from prosecution for his attempts to rig the 2020 election, which set off a series of events that led to the attack on the Capitol building on January 6.
The U.S. Court of Appeals for the District of Columbia Circuit, a three-judge panel comprised entirely of women, mentioned several potential ruling scenarios but made no indication that they would accept Trump’s immunity claim.
The trial might go more swiftly if the court delivers a decision that addresses the immunity question, or it could decide to make a more limited decision that leaves certain questions unanswered. Alternatively, they might decide that Trump was not entitled to file an appeal at this point in the legal proceedings.
A few minutes before the 9:30 a.m. start of oral arguments, Trump arrived at the federal courtroom in Washington, D.C., and sat at his attorneys’ table. He remained generally silent during his attorneys’ presentation but occasionally became agitated when the attorney for the prosecution spoke. He was observed handing notes on a yellow legal pad to his solicitors.
Jack Smith, special counsel, was also present for the little over one-hour session.
The lawsuit is one of four criminal charges that Trump is dealing with as he continues to battle on several fronts in the legal race to become the presumed nominee for the Republican presidential ticket.
Given Trump’s reelection, it is still unclear if the Washington trial, which was originally scheduled to start in March, will take place before the election. To keep the trial on track, Smith has requested the court to proceed swiftly.
Due to the appeals court’s accelerated hearing schedule, a decision may be rendered soon—possibly even in time to support the planned start of Trump’s trial.
Judge Florence Pan quickly barraged Trump’s attorney with fictitious scenarios in which Trump’s logic precluded prosecuting presidents.
She questioned if a president might face legal action for ordering the death of a political rival or for selling pardons or military secrets.
“I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president even if that action is taken for an unlawful or unconstitutional purpose, is that correct?” said Pan.
John Sauer, Trump’s attorney, retorted that a prosecution of this kind could only occur if the president is impeached and found guilty by the Senate.
Prosecutors’ stance “would authorize, for example, President Biden’s indictment in the Western District of Texas after he leaves office for allegedly mismanaging the border,” Sauer continued.
Judge Karen Henderson also referred to another section of the Constitution, which says that the president must make sure that laws are faithfully carried out.
“I find it incongruous to argue that his constitutional obligation to ensure the law’s faithful execution permits him to break the law,” she said.
Judge Michelle Childs used President Richard Nixon’s pardon upon his resignation as evidence that no one has ever presumed that presidents are exempt from prosecution during their term in office, regardless of whether they had been found guilty in an impeachment trial.
To avoid being impeached, Nixon resigned.
According to Childs, his pardon shows “an assumption that you could be prosecuted.”
Although Sauer acknowledged that a president could face legal action for only private acts, he contends that the separation of powers clause in the Constitution grants him immunity because his actions challenging the election results and pushing Congress to prevent Biden’s victory from being certified are considered “official acts” while he was in office.
Henderson raised concerns later in the debate that a decision holding that the president is not immune may result in politically motivated trials of succeeding presidents.
“How can we draft a decision that would close the floodgates?” said she.
She said that “criminal liability would be unavoidably political,” as the Justice Department has already acknowledged.
James Pearce, Smith’s attorney, said that the Trump probe “doesn’t reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future.”
“Never before have there been allegations that a sitting president has had personal relationships with private individuals and has attempted to fundamentally undermine the Democratic Republic and the electoral system by using the tools of power,” he continued.
On Monday, Trump hinted that he might have President Joe Biden charged if the court did not decide in his favor and he was to win the presidency.
In any case, the defeated side will probably file an instant appeal with the Supreme Court. After that, the justices would have to decide whether to take up the matter and render their judgment—possibly with expedited processing.
The four-count indictment in Washington that includes allegations of conspiracy to defraud the United States and conspiracy to impede an official action is the basis for Trump’s appeal. Trump entered a not-guilty plea.
In December, Trump’s attempt to have the indictment dismissed on the grounds of presidential immunity and other constitutional arguments was rejected by U.S. District Court Judge Tanya Chutkan. While the appeals procedure is ongoing, the matter is put on pause.
They partially reference a 1982 Supreme Court decision upholding the president’s immunity from civil litigation where the activities at issue are those that fall beyond the president’s “outer perimeter” of official duties.
Trump’s attorney, Smith, contends that no blanket immunity shields previous presidents from prosecution for crimes they committed while in office.
In court documents, Smith also claims that Trump’s attempt “to use fraudulent means to thwart the transfer of power and remain in office” should not be regarded as an official act.
In addition, Trump claims that since he was impeached and found not guilty of the same underlying offenses, there can be no prosecution. He refers to his constitutional protection against being prosecuted more than once for the same crime—a legal doctrine known as double jeopardy.
In response, Smith argued in court documents that it is unambiguously stated in the Constitution that a president who is successfully impeached may also be charged with a crime. He went on to say that nothing in the Constitution precludes charging a president who has been impeached but failed.
Judge Karen Henderson, a Republican appointment, and Judges Pan and Michelle Childs, a Democrat, make up the panel of the appeals court.
The justices also addressed a friend-of-the-court brief from the leftist organization American Oversight, which refuted Trump and Smith’s claim that the appeals court lacks jurisdiction to consider the case at this point.
Pan questioned Pearce about why he was not making the case that Trump does not have the authority to file the so-called “interlocutory” appeal before trial and that the appeals court should not consider it at this point in the case.Â
“Why don’t you say that this appeal should be dismissed since it is interlocutory? That advances your interests, doesn’t it? said, Pan.
Though it might help prosecutors in the near run, Pearce said it would not be the “right analysis”.
Judges’ questions left it unclear if the court would adopt that strategy, which would send the matter to Chutkan so that the trial could proceed.
