The U.S. Court of Appeals for the District of Columbia appeared inclined during a hearing Tuesday to reject former President Trump’s claims that he is immune from prosecution on criminal charges that he plotted to overturn the results of the 2020 election.
Trump’s attorneys have argued that he has immunity from being prosecuted for actions he took while he was president, except if he was impeached and convicted. Trump was impeached by the House after the Jan. 6, 2021, Capitol insurrection, but was not convicted by the Senate.
Special counsel Jack Smith, who is prosecuting Trump in connection with the former president’s actions after the 2020 election, has argued that a former president does not have absolute immunity and criminal charges can be brought once a president leaves office, particularly if the actions don’t relate to his official duties.
Trump was indicted on charges of conspiring to obstruct the official certification of Joe Biden’s election victory and seeking to defraud Americans of their rightful votes. Trump is charged with four federal felonies and has pleaded not guilty to all charges.
Trump is accused in the indictment of scheming to enlist fake electors in battleground states won by Biden and pressing then-Vice President Mike Pence to reject the counting of electoral votes on Jan. 6, 2021, acts Smith has argued fall far outside a president’s official duties. Trump has maintained that as president, he was responsible for ensuring an accurate election took place.
The three-member panel, which includes Judge Karen Henderson, an appointee of President George H.W. Bush, and Judges J. Michelle Childs and Florence Pan, both Biden appointees, pointed out that impeachment is typically reserved for high crimes and misdemeanors. Three presidents have been impeached — Andrew Johnson, Bill Clinton and Trump twice — but none have been been convicted by the Senate.
The judges pointed out that during Trump’s second impeachment trial, his lawyers argued there was no need to convict him because he would be subject to criminal prosecution since he was no longer in office. The judges said that may have swayed senators not to convict him.
Trump attorney John Sauer disagreed with the court’s characterization.
Pan questioned Sauer about whether a president could be criminally charged after leaving office in connection with several hypothetical examples of what could be considered “official acts,” including selling a pardon.
“Could a president order Seal Team Six to assassinate a political rival?” Pan asked.
Sauer answered that, in such a situation, the president “would have to be speedily impeached and convicted.”
When Pan responded, “I asked you a yes or no question,” Sauer replied that his argument was no, a president could not be criminally prosecuted unless first impeached.
Assistant special counsel James Pearce responded that the idea of a president ordering the assassination of a rival, resigning before being impeached and being immune from prosecution would make for “an extraordinarily frightening future.”
“What kind of world are we living in … if a president orders his SEAL team to assassinate a political rival” but cannot be criminally prosecuted? Pearce said.
When Childs pressed Sauer on whether Trump’s alleged criminal conduct constituted a “private” or “official” act, he argued strenuously that Trump was doing official business.
Henderson appeared to ask how to deny immunity in a way that doesn’t create risk of responsive prosecutions of presidents.
“How do we write an opinion so that we stop the floodgates? Your predecessors … recognized that [presidential] criminal liability would be inevitably political.”
Pearce stressed that since President Nixon’s resignation in 1974 due to the Watergate scandal, it has been understood that presidents can be prosecuted for their acts in the White House. He said the fact that there hasn’t been a flood of criminal charges against former presidents since then shows how serious the allegations against Trump are.
Pearce said that no former president has claimed immunity from prosecution after leaving office and the court shouldn’t recognize immunity in a case of a president accused of crimes to try to stay in office after losing an election.
The panel also questioned Trump’s lawyers and the special counsel’s office about questions raised in amicus briefs submitted by outside groups, asking if it was the right moment to decide immunity questions and whether the special counsel was properly appointed. Neither side raised those arguments themselves and said they don’t support them. The court pushed Pearce about why he wasn’t urging the panel to accept the argument that it isn’t the right time to decide immunity, something that would mean a win for the special counsel.
“We are doing justice, and that means getting the law right,” Pearce responded.
The result of the hearing could have broad ramifications. Trump is the first former president to be charged with a crime and there is no clear precedent on whether a former president may be prosecuted for his actions while in office.
Smith is counting on a swift decision in order to proceed with the trial before the November election. Currently scheduled to begin March 4, the trial has been paused pending the outcome of the appeal after Judge Tanya Chutkan ruled Trump did not have immunity. It’s not clear when the panel will rule, though it has signaled that it intends to work quickly.
A decision unfavorable to Trump is likely to be appealed to the Supreme Court, though there is no guarantee the court will take up the appeal. Last month, the Supreme Court rejected Smith’s attempt to skip the appeal and send the question straight to the highest court.
Although he was not required to attend, Trump was present for oral arguments Tuesday, a possible calculation by his campaign that the image of him in court would be beneficial to the former president amid the final days of campaigning before the Iowa caucuses on Jan. 15. Trump falsely told supporters in a fundraising email that he was being “forced” off the campaign trail to attend.
It is rare for a defendant to attend an oral argument at this level, and no cameras are allowed in the courthouse.
“I feel that as a president, you have to have immunity, very simple,” Trump told reporters after the hearing. “You can’t have a president without immunity … as a president, you have to be able to do your job.”