WASHINGTON — Federal appeals court judges on Tuesday questioned former President Donald Trump's broad claim of immunity from prosecution for his efforts to overturn the 2020 election that resulted in a chain of events that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.
The all-woman three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit said nothing to suggest it would embrace Trump's immunity argument, although the judges raised several options about how they could rule.
The court could issue a ruling that decisively resolves the immunity question, allowing the trial to move forward quickly, or alight on a narrower ruling that could leave some issues unresolved. It could also simply rule that Trump had no right to bring an appeal at this stage of the litigation.
Trump arrived at the federal courthouse in Washington a few minutes before oral arguments began at 9:30 a.m. and sat at his lawyers' table. He was mostly muted during his lawyers’ presentation but grew flustered at points when the prosecution's lawyer was speaking. He could be seen passing notes to his lawyers on a yellow legal pad.
Special counsel Jack Smith was also present at the hearing, which lasted for a little over an hour.
The case is one of four criminal prosecutions Trump faces as he fights on multiple legal fronts while remaining the presumptive front-runner for the Republican presidential nomination.
With Trump running for office again, whether the Washington trial, originally scheduled for March, can take place ahead of the election continues to hang in the balance. Smith has asked the court to move quickly, a bid to keep the trial on schedule.
The appeals court is hearing the case on an expedited schedule, so a ruling could come quickly, possibly in time to allow Trump’s trial to begin as scheduled.
Judge Florence Pan immediately peppered Trump's lawyer with hypothetical situations in which, under Trump's theory, presidents could not be prosecuted.
Could a president, she asked, be prosecuted for selling pardons or military secrets or for ordering the assassination of a political opponent?
"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?" Pan asked.
D. John Sauer, Trump’s lawyer, responded that such a prosecution can take place only if the president is impeached and convicted by the Senate first.
The position taken by prosecutors “would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border allegedly," Sauer said.
Judge Karen Henderson, the sole Republican appointee on the panel, cited another part of the Constitution, a provision that requires the president to ensure that laws are faithfully executed.
“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” she said.
Judge Michelle Childs mentioned that President Richard Nixon was pardoned upon leaving office as a data point suggesting that no one has ever assumed presidents are immune from prosecution after they leave office, whether or not they have been convicted in impeachment proceedings.
Nixon resigned before he could be impeached.
His pardon indicates “an assumption that you could be prosecuted,” Childs said.
Sauer made it clear that a president can be prosecuted for purely private conduct but argued that Trump has immunity under the Constitution’s principle of separation of powers because his actions questioning the election results and urging Congress to block certification of Biden’s victory constitute “official acts” while he was serving as president.
Later in the argument, Henderson appeared more supportive of Trump, raising a concern that a ruling saying the president does not have immunity would lead to politically driven prosecutions of future presidents.
“How do we write an opinion that would stop the floodgates?’ she asked.
The Justice Department has acknowledged that “criminal liability would be unavoidably political,” she added.
The Trump investigation “doesn’t reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future,” said James Pearce, the lawyer arguing on behalf of Smith.
“Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system,” he added.
Trump suggested Monday that if the court does not rule in his favor and he wins the presidential election, he would have Biden indicted.
Henderson also raised the prospect that the case could be sent back to the trial court for analysis of whether Trump’s actions could be considered official acts as president, which could affect his immunity argument and potentially delay the trial.
Trump spoke to reporters after the argument, saying he had done "nothing wrong" and warning that the prosecution was a "threat to democracy."
Trump insisted that his acts were part of his presidential responsibilities in fighting election fraud, despite the lack of evidence of any widespread fraud in 2020, a conclusion reached by the Trump administration's own Justice Department.
"If it weren't me, that would be the end of this case. But sometimes they look at me differently than they look upon others, and it's very bad for our country," Trump said.
Whatever happens in the appeals court, the losing party is likely to immediately appeal to the Supreme Court. The justices would then face a decision on whether to take up the case and issue their own ruling, potentially also on a fast-tracked basis.
Trump’s appeal arises from the four-count indictment in Washington, including charges of conspiracy to defraud the U.S. and conspiracy to obstruct an official proceeding. He has pleaded not guilty.
U.S. District Judge Tanya Chutkan last month denied Trump’s attempt to dismiss the indictment on presidential immunity and other constitutional grounds. The case is on hold while the appeals process plays out.
Trump’s team cites in part a 1982 Supreme Court ruling that endorsed presidential immunity from civil lawsuits when the underlying conduct concerns actions within the “outer perimeter” of the president’s official responsibilities. It concedes that a former president can be prosecuted for conduct unrelated to official acts.
Smith, who is prosecuting Trump, argues that there is no broad immunity that prevents former presidents from being prosecuted for criminal acts committed in office.
Furthermore, Trump’s attempt “to use fraudulent means to thwart the transfer of power and remain in office” should not be considered an official act, Smith argues in court papers.
Trump also argues that any prosecution is prohibited because he was impeached and acquitted for the same underlying conduct.
Smith countered in his own court papers that the Constitution clearly states that a president who is successfully impeached can also face criminal prosecution. There is nothing in the Constitution to suggest that an unsuccessfully impeached president cannot be charged, he added.
The judges also addressed an argument made not by Trump or Smith but by the liberal group American Oversight in a friend-of-the-court brief that the appeals court does not have the authority to hear the appeal at this stage.
Pan asked Pearce why he was not arguing that the appeals court cannot hear the appeal at this stage of the litigation because Trump does not have the right to make the request before trial, known as an “interlocutory” appeal.
“Why aren’t you taking position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?” Pan said.
Pearce said it would not be the "right analysis" even though it would benefit prosecutors in the short term.
It was unclear from the judges’ questions whether the court would take that approach, which would return the case to Chutkan so the trial could go ahead.
