Appeals Court Wary of Trump Immunity Claims

Their sharp questioning of Trump’s attorney came during a hearing where Justice Department prosecutors and the defense team for Trump squared off before the U.S. Court of Appeals for the D.C. Circuit to debate whether the former president should be granted immunity from a four-count criminal indictment brough by Justice Department special counsel Jack Smith.

Among other things, the judges seemed to take issue with the idea that the Senate must convict a president first through impeachment in order for prosecutors to be able to file criminal charges against him. They also noted that some of the arguments Trump’s lawyer made were paradoxical, pointing out, for example, that some members of the Senate voted against impeaching Trump based on the assumption any criminal activity could and would be handled by the criminal justice system.

Additionally, they went to great lengths to try to understand the limits of presidential immunity – at one point asking Trump’s lawyer whether the same logic would apply, for example, to a president who used the military to assassinate a political rival.

The three-judge panel includes Judge Karen Henderson, who was appointed by President George H.W. Bush, and Judges Florence Pan and J. Michelle Childs, who were appointed by President Joe Biden. Childs was in the running for the Supreme Court seat that Justice Ketanji Brown Jackson now holds.

Their decision on the issue of presidential immunity is poised to be the single most significant judicial ruling regarding a presidential election since 2000 and set to play the star role in Trump’s trial, which is slated to begin March 4 but is on hold until the issue of immunity is settled.

Trump’s lawyer, John Sauer, argued that if presidents have to look over their shoulders every time they make consequential decisions and consider whether it would result in them going to jail when an opposing political party takes power, then it would inevitably infringe on their ability to do their jobs.

He posited, for example, whether former President George W. Bush could be indicted for giving false information to Congress that caused the U.S. to go to war in Iraq, whether former President Barack Obama could be indicted for murder for authorizing drone strikes that targeted U.S. citizens abroad, and whether President Joe Biden might one day be indicted over his handling of the influx of migrants at the U.S.-Mexico border.

Assistant special counsel James Pearce refuted that hypothetical, asking the judges to imagine what would happen if the court agreed with Trump’s argument about total immunity against criminal charges linked to official acts.

“What kind of world are we living in if, as I understood my friend on the other side to say here, a president orders his SEAL team to assassinate a political rival and resigns for example, before an impeachment,” Pearce asked. “Not a criminal act. President sells a pardon, resigns or is not impeached? Not a crime.”

“I think that is an extraordinarily frightening future and that is the kind of if we’re talking about a balancing and a weighing of the interests I think that should weigh extraordinarily heavily in the court’s consideration,” he added.

Pearce also rejected Sauer’s argument that ruling against Trump’s right to use presidential immunity as a defense would “open a pandora’s box” of prosecutions against former presidents.

“The fact that this investigation doesn’t reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future,” Pearce said. “I think it reflects the fundamentally unprecedented nature of the criminal charges here.”

“Never before has there been allegations that a sitting president,” he said, “using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”

Overshadowing the hearing was the former president himself, who traveled to the downtown D.C. courthouse on this rainy day to sit in on debate. Trump seemed at times annoyed and agitated by the line of questioning from the judges and by the arguments made by Pearce – in particular, his assertion that he didn’t expect “to see a sea change of vindictive tit for tat prosecutions in the future.”

Trump spoke in the wake of the hour-long hearing at a nearby hotel.

“It’s very unfair,” he said, speaking about the notion that he is being politically persecuted by the Biden administration and calling the effort “a threat to democracy.”

The D.C. appeals court agreed to hear the case on an expedited schedule, so a ruling could come in mere days. The losing party is almost certain to appeal to the Supreme Court. Smith already attempted to leap-frog the appeals court by asking the high court to settle the debate – though they declined – and Sauer noted during Tuesday’s hearing that Trump would appeal if the ruling goes against him.

In resolving an issue so intimately tied to the outcome of the 2024 presidential election, the Supreme Court justices – if they choose to take the case – would be attempting to cross a minefield that threatens their own integrity.

As it stands, the high court is already poised to hear an appeal of one of the key charges filed against those who participated in the insurrection at the Capitol – a decision that could reconsider whether the actions of rioters were criminal and rewrite the legacy of the day – as well as appeals on whether the insurrection clause of the 14th Amendment can keep Trump off the ballot in Colorado and Maine.

Rendering a set of controversial and politically polarizing decisions related to the fate of American democracy seems hardly like something it wants to do ahead of the presidential election – especially those handed down by a conservative bench from which Trump hand-picked three justices.