Judges Lean Toward Rejecting Trump’s Immunity Claim in Court

It looks like Donald Trump ran into a wall today while pushing his position that he cannot be charged criminally for his efforts to remain in power after losing the 2020 election. It came in the form of three federal appeals court judges.

With Trump looking on from beside his lawyers in the courtroom in Washington, the judges poked holes in the legal reasoning behind his claims that presidents cannot be prosecuted for actions they take in office. By the time they were done, there was not much doubt they were leaning toward rejecting this central element of Trump’s defense in the election subversion case.

“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 laws,” said Judge Karen Henderson, the lone Republican appointee on the three-judge panel hearing the arguments.

The court seemed especially dismissive of an assertion by Trump’s lawyer, D. John Sauer, that the only way to hold a president accountable for crimes was to first secure a conviction in an impeachment proceeding.

“I’m asking a yes or no question: Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution,” asked Judge Florence Pan.

“If he were impeached and convicted first,” Sauer replied — a response that amounted to an audacious “no.”

How expansively the judges might rule on the issue of presidential immunity remains to be seen.

The matter is almost certain to land in the lap of the Supreme Court, which is already scheduled to take up a separate case next month on whether Trump can be disqualified from state ballots for his role in encouraging the Jan. 6 attack on the Capitol.

The day did not go terribly well either for Trump’s attempt to turn the appeals proceeding into a bit of political theater, counter-programming to the more traditional campaigning underway in Iowa, where the caucuses will get the 2024 voting underway in less than a week.

He did not have to attend the hearing -– indeed, it is unusual for any defendant, much less a former president, to be present for an appeals court arguments. But Trump chose to do so as part of his accelerating effort to cast all of the legal cases against him as politically motivated, a recurring theme that he has used to rally support as the Republican primary season gets underway.

In this case, though, the protocols of a federal courthouse worked against him – no cameras were allowed, for starters – and his brief post-hearing appearance took place with little notice to journalists at the downtown hotel that he owned during his presidency but then sold after leaving office.

Instead, it was the appeals court judges who got the headlines, especially Judge Pan, whose probing of Trump’s immunity claim led to the hypothetical situation that even non-lawyers could grasp onto: What if a president ordered Navy commandos to carry out the killing of a rival politician?

Sauer, the former president’s lawyer, responded that a president who did such a thing would surely be impeached and convicted. And yet, remarkably, he insisted that the courts would have no jurisdiction to take matters into their own hands and oversee a murder trial unless there was a guilty verdict during the impeachment case.

To rule otherwise, he said, would open the door to the routine prosecutions of former presidents whenever the White House changes partisan hands. (He did not mention that Trump, calling on the campaign trail for “retribution” against his opponents, has already repeatedly hinted that he would do just that if he takes power again.)

James Pearce, a lawyer for the special counsel Jack Smith, seemed horrified by Sauer’s argument, pointing out that, under his theory, presidents could literally get away with murder if they simply resigned before impeachment charges were brought. Advocating for that sort of unbounded version of presidential immunity wasn’t just wrong, Pearce said, but also a vision for “an extraordinarily frightening future.”

Pearce further rejected the idea that allowing the case to go forward would be a “sea change” that would open the door to “vindictive tit-for-tat prosecutions in the future.” Instead, he reminded everyone in court, Trump was the first former president in American history ever to be charged with crimes, underlining the “fundamentally unprecedented nature” of the Trump prosecutions.

“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 said.

“Frankly if that kind of fact pattern arises again,” Pearce went on, “I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”

While the appeals court rushed through the holiday season to be ready for today’s hearing, it’s not clear when the panel will hand down its ruling. Depending on its outcome, either Trump or prosecutors could appeal it. The case could be challenged in front of the full court of appeals — all 11 active judges — or directly to the Supreme Court.

Either one of those courts could decide whether to take up the matter or decline to get involved and leave the ruling by the panel in place.

How quickly all of this plays out could be nearly as important as the ultimate result. After all, the trial judge, Tanya Chutkan, has frozen the underlying case until the immunity issue is resolved. For now, the case is set to go in front of a jury in early March, but protracted litigation could push it back — perhaps even beyond the November election.

If that were to happen and Trump were to win the election, he could try to pardon himself or otherwise use his control of the Justice Department to end the case against him.

We’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.

What impact does the Supreme Court cases have on the Georgia trial? — Matt Brightwell, York, South Carolina.

Alan: The Supreme Court’s ultimate decision on Trump’s claims of immunity in the federal case accusing him of seeking to overturn the 2020 election could affect on the similar state criminal charges in Georgia. This week, in fact his Georgia lawyer raised an immunity defense against that indictment that was very close to the one his lawyers in Washington are trying. If the Supreme Court ends up considering the immunity defense, it could have a direct effect on the defense in Georgia. But there’s one caveat: the defense the Supreme Court is likely review is specifically geared toward shielding Trump from federal charges.

Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case currently stands.

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