Insights from the appeals court hearing on Donald Trump's immunity arguments
Federal appeals panel expresses skepticism towards Trump's immunity claims, raising concerns over the extent of presidential immunity and the potential implications for prosecuting attempts to overturn the 2020 election
A federal appeals panel showed significant doubt on Tuesday regarding Donald Trump's claim that he cannot be prosecuted for attempting to overturn the 2020 election, highlighting the potentially far-reaching consequences of absolute presidential immunity.
Trump's legal team argued that his indictment for undermining the federal election should be dropped due to his immunity from prosecution. However, the three judges on the US Court of Appeals for the District of Columbia Circuit panel raised concerns about whether this immunity theory, supported by Trump's lawyers, would enable presidents to trade pardons or even carry out political assassinations.
On December 19, 2023, in Waterloo, Iowa, former U.S. President Donald Trump, who was also a Republican presidential candidate, was captured during a campaign event. Iowa Republicans are set to make the first selection for their party's nomination for the 2024 presidential race when they caucus on January 15, 2024. (Photo by Scott Olson/Getty Images)
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Trumps appeals hearing on presidential immunity claims
Jack Smith's special counsel team argued that no president is exempt from the law, cautioning that granting presidential immunity from prosecution could lead to a "floodgate" of consequences and stating that it would be "very frightening" if there were no legal means to prevent future presidents from manipulating votes and maintaining power.
However, the judges also questioned whether they have jurisdiction to address the issue of presidential immunity in the current stage of the case. Trump is set to stand trial in March for his involvement in attempting to overturn the 2020 election, and has pleaded not guilty.
Trump decided to participate in the hearing, underscoring the impact of his four criminal indictments on his campaign for the presidency. The ruling by the appeals court is expected to lead to a confrontation over presidential immunity in the Supreme Court. Although no deadline has been set by the judges, it is unlikely that they will take an extended amount of time to make a decision.
Here are the key takeaways from Tuesdays oral arguments:
Judges worry about scope and impact of Trumps immunity argument
During questioning by the Circuit Court judges, Trump attorney John Sauer was pressed on his assertion that Trump's post-election actions were protected by presidential immunity. The judges also questioned his argument that criminal prosecution could only occur after impeachment and conviction by Congress for the same conduct. DC Circuit Court Judge Karen Henderson, appointed by President George H.W. Bush, expressed skepticism about Trump's official duties.
Henderson stated that it is contradictory to claim that his constitutional obligation to faithfully execute the laws allows him to break criminal law. Some judges disagreed with Trump's immunity claims, emphasizing the alarming precedent it could set for future presidents to flagrantly violate the law without facing consequences.
This demonstrated their general doubt of Trump's perspective, indicating that they align more closely with District Judge Tanya Chutkan's strong dismissal of Trump's theory of absolute immunity. President Joe Biden nominee Judge Florence Pan posed several thought-provoking hypothetical questions to Sauer in order to better understand the parameters of his immunity argument. His legal theory asserts that former presidents are protected from prosecution for official actions unless they have been impeached and convicted by Congress beforehand.
"Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six?" Pan asked.
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Judge asks if a president can order SEAL Team 6 to assassinate a rival. Hear Trump's lawyer respond
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"He would have to be, and would speedily be impeached and convicted before the criminal prosecution," Sauer said.
Pan insisted on a simple yes or no answer to his question. However, Sauer responded by stating that the process of impeachment and conviction would need to take place before any prosecution could be initiated, emphasizing the importance of the political process in this matter.
Pan asked Sauer a series of hypothetical questions about whether his immunity theory could also be applied to a president selling pardons to criminals or selling military secrets to an enemy state. Assistant special counsel James Pearce then continued the judges' line of thinking.
Key debate over whether Trumps impeachment prevents prosecution
"It would be quite alarming if there was no mechanism in place to hold future former presidents accountable if they attempted to remain in power after losing an election," stated Pearce.
Sauer, Trump’s attorney, argued that a president can only face criminal charges and trial after being convicted for the alleged actions in the Senate, which he was acquitted of in February 2021. Pan questioned Sauer's stance on impeachment and conviction by Congress being necessary for any criminal prosecution, while also pressing him to acknowledge the possibility of presidents facing prosecution.
"Once you admit that presidents can face prosecution in certain situations, your argument about separation of powers loses its strength, and the focus turns to whether your interpretation of the impeachment judgment clause is accurate," Pan stated.
The judge pointed out that several senators had leaned on the notion that it would be the responsibility of the Justice Department to investigate Trump's actions after the 2020 election when deliberating on whether to convict him post-impeachment.
At the end of Tuesday's hearing, Sauer reiterated that a previous president could face prosecution for "official acts" if they were previously convicted by the Senate during impeachment proceedings.
"If a president was impeached and convicted for incitement of insurrection," Pan inquired, "could the government then pursue prosecution for the same or similar behavior?"
"Correct," Sauer said.
Trump lawyer says immunity keeps shut Pandoras box for indicting presidents
Sauer warned of the potential danger in opening a "Pandora's box" by indicting former presidents for their actions while in office. He argued that Special Counsel Jack Smith's decision to bring charges against Trump could set a precedent for similar prosecutions in the future, potentially leading to charges against Biden, Barack Obama, or George W. Bush.
Sauer expressed concern that allowing the prosecution of a president for official acts could have devastating consequences for the nation. If the judges do not uphold absolute presidential immunity, Sauer also raised the possibility of President Biden being indicted for mismanaging the border after leaving office.
Extending the hypotheticals, Sauer delved into history and posed the question of whether past presidents could face charges for their most contentious official decisions.
"Is it possible that George W. Bush could face legal action for impeding an official process by allegedly providing Congress with false information to justify the Iraq war on false grounds?... Could President Obama potentially be held accountable for authorizing drone strikes that targeted US citizens overseas, potentially constituting murder?"
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CNN reporter describes Trump's demeanor during his presidential immunity hearing
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Questions over jurisdiction â can this court even rule on the issue now?
Prior to delving into Trump's arguments on Tuesday morning, the judges raised questions to his attorney about the validity of reviewing his immunity claims before the trial reaches a conclusion.
"Before we begin, could I quickly confirm a few details? Our jurisdiction was contested by an amicus. However, based on your reply brief, you are not disputing our decision to review the immunity claims," Henderson inquired of Sauer, in reference to a friend-of-the-court brief filed by the watchdog group American Oversight.
The group argued that the appellate court does not have the authority to address Trump's immunity appeal prior to the trial. They asserted that unless there is a specific constitutional or statutory guarantee cited that would prevent a trial from taking place, the issue should be deferred for appeal after the trial.
The argument provides a possible way for the appeals court to avoid addressing the immunity issue at present. The fact that the judges raised the issue indicates they may be considering this approach. However, if they did take this route and Trump was found guilty, the issue would probably resurface before them eventually.
Trump's attorney and the special counsel's team both believe that the appeals court has the power to address the immunity dispute at this time, with the special counsel's team also contending that the intermediate court can review the matter before Trump's trial is over.
Pearce asserted that the court should consider both claims and then proceeded to present his arguments against Trump's immunity claims to the judges on Tuesday. The special counsel's office attempted to bypass the appeals court and directly petition the Supreme Court to address the issue, but their proposal was denied by the justices.
Trump is seen but not heard in court
Trump was present at the hearing on Tuesday, but he was not visible as he entered and exited the courtroom in Washington, DC. Cameras were not allowed, but the audio of the proceeding was broadcast.
Seated at the defense table, Trump sat about 20 feet away from Smith, who was also present at Tuesday's hearing. As the special counsel presented their argument, Trump was seen taking notes and passing them to Sauer.
Despite the upcoming Iowa caucuses, the former president made the decision to attend Tuesday's hearing. This decision highlights Trump's strong lead in the Iowa polls and emphasizes his campaign strategy of attacking the criminal prosecutions against him.
Trump will travel to Iowa for a Fox News town hall on Wednesday before returning to New York on Thursday to attend the closing arguments in his civil fraud trial. The New York attorney general is seeking $370 million in damages and aims to prohibit Trump from conducting business in the state. Following the hearing, Trump made an appearance at the site of his former Washington, DC, hotel to speak on camera.
"I feel that as a president, you have to have immunity, very simple," Trump said.
CNNs Hannah Rabinowitz, Holmes Lybrand, Katelyn Polantz and Evan Perez contributed to this report.
