In a courtroom where former President Donald Trump was in attendance, a panel of federal appeals court judges in Washington voiced substantial doubts on Tuesday regarding Trump's claim of immunity from prosecution in connection with allegations that he orchestrated efforts to overturn the outcome of the 2020 election.
The three-judge panel, featuring two appointees of President Joe Biden, also raised questions about whether they had jurisdiction to consider Trump's appeal at this juncture, thereby suggesting the possibility that the appeal could be dismissed on procedural grounds.
Throughout extensive arguments, the judges repeatedly pressed Trump's attorney to substantiate assertions that Trump should be shielded from criminal charges for actions he maintains were within his official presidential duties. The argument in question had been rejected by a lower-court judge overseeing the case against Trump the previous month, and the appellate judges' inquiries seemed to cast doubt on the notion that the Founding Fathers intended absolute immunity for former presidents after leaving office. Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush stated, "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."
What are the implications of the appeal?
The outcome of this appeal bears immense implications, both for the ongoing criminal case against Trump and for the broader, uncharted issue of whether an ex-president can be prosecuted for actions taken while in office. Additionally, this decision is likely to set the stage for further appeals before the U.S. Supreme Court. Although the Supreme Court had declined a request to intervene last month, it may still become involved later.
A swift resolution holds great significance for Special Counsel Jack Smith and his team, who are eager to proceed with the case, which is currently on hold pending the appeal, and bring it to trial before the November election. In contrast, Trump's legal team, in addition to seeking a dismissal of the case, appears to be aiming for a protracted appeals process that could potentially delay the trial beyond its scheduled start date on March 4, possibly even extending it beyond the election.
Trump's presence at Tuesday's proceedings underscored the importance of this case to both sides. Although there is no requirement for defendants to appear in person for such hearings, Trump attended the arguments.
Former presidents generally enjoy broad immunity from lawsuits for actions taken during their official White House duties. However, because no former president before Trump had ever faced indictment, the issue of whether this protection extends to criminal prosecution had not previously been addressed by the courts. Trump's legal team contends that it does, arguing that the courts lack authority to scrutinize a president's official actions. They argue that the prosecution of their client represents a significant departure from over two centuries of American history and could open the door to future politically motivated cases.
D. John Sauer, a lawyer representing Trump, asserted, "To authorize the prosecution of a president for official acts would open a Pandora’s box from which this nation may never recover." He further argued that under the government's theory, presidents could be prosecuted for providing "false information" to Congress to initiate war or for authorizing drone strikes against U.S. citizens abroad.
However, the judges appeared skeptical of these arguments. Judges Henderson and Florence Pan pointed out that the lawyer who represented Trump during his 2021 impeachment trial suggested that he could potentially face criminal prosecution later, stating at the time, "We have a judicial process in this country. We have an investigative process in this country to which no former office holder is immune." Judge J. Michelle Childs also questioned why former President Richard Nixon had needed a pardon in 1974 after the Watergate scandal if former presidents are immune from prosecution. Sauer argued that Nixon's case involved different circumstances that did not encompass the same kind of "official acts" on which Trump's indictment is based.
In addition to the immunity argument, the judges immediately delved into the question of whether the court had jurisdiction to hear the appeal at this stage. Sauer contended that presidential immunity claims are meant to be reviewed before trial. Smith's team also urged the court to address the appeal promptly.
Smith's team argues that presidents are not entitled to absolute immunity and that, regardless, Trump's alleged actions in the indictment, such as attempting to recruit fictitious electors in battleground states won by Biden and pressuring Vice President Mike Pence to reject the counting of electoral votes on January 6, 2021, fall outside the scope of a president's official duties.
Prosecutor James Pearce asserted that "a former president enjoys no immunity from prosecution" and that this case is not the appropriate context to establish a novel form of immunity. He noted that such allegations against a sitting president had never arisen before, emphasizing that Trump's alleged actions constituted an unprecedented subversion of the democratic republic and the electoral system.
The timeline for a ruling by the panel from the U.S. Circuit Court of Appeals for the D.C. Circuit remains uncertain, although indications suggest their intention to expedite the process.
U.S. District Judge Tanya Chutkan had previously rejected the immunity arguments, ruling that the presidency does not confer a "‘get-out-of-jail-free’" privilege. Trump's legal team subsequently appealed this decision. While Smith's team seeks to maintain the case's schedule, Trump's strategy appears geared toward postponing it until after the November election, a scenario that could enable him to influence the Justice Department to drop the prosecution or even seek a self-pardon in the event of victory. Trump faces three other criminal cases, both in state and federal courts, with the Washington case slated for trial as the first among them.
