Trump’s immunity claim gets frosty reception at appeals court

A federal appeals court panel strongly suggested Tuesday that it would reject Donald Trump’s claims of immunity from criminal charges related to his effort to subvert the 2020 election.

With Trump looking on, the three judges expressed deep skepticism of his contention that a president could not be prosecuted — even for assassinating a rival or selling military secrets — if he were not first impeached and convicted by Congress.

“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,” said Judge Karen Henderson, a George H.W. Bush appointee.

Despite that inclination, the judges — who also include Biden appointees Florence Pan and Michelle Childs — appeared divided during Tuesday’s oral argument over how to shape their decision. Their ruling, no matter where they land, is likely to trigger a further appeal to the Supreme Court for a final determination on whether Trump’s criminal trial in Washington, D.C. will take place this year.

That trial is currently scheduled to begin March 4, but it is likely to be postponed by the litigation over Trump’s immunity claims. His claims hinge on his argument that the charges against him, brought by special counsel Jack Smith, arose out of his official acts as president. Smith alleges that Trump tried to disenfranchise American voters and defraud the nation by spreading lies about the 2020 election and attempting to cling to power.

U.S. District Court Judge Tanya Chutkan, who is set to preside over the trial, rejected Trump’s immunity claims last month, prompting Trump to appeal the matter and effectively put the trial proceedings on hold until the immunity issue is resolved.

During Tuesday’s hearing, which lasted over an hour, the three-judge panel of the D.C. Circuit Court of Appeals seemed inclined to uphold Chutkan’s ruling — but the precise reasoning they might use, and how quickly they might rule, remained unclear.

Trump’s attorney, John Sauer, argued that permitting Smith’s case to proceed would trigger a “republic-shattering” cycle of recrimination in which future presidents would reflexively prosecute their predecessors from opposing parties.

To “authorize the prosecution of a president for his official acts would open a Pandora’s Box from which this nation may never recover,” Sauer said.

All three appeals judges, however, sounded dubious. Pan, for instance, said that dismissing the Trump prosecution would have its own set of ill effects on the nation, like weakening the enforcement of criminal laws or diminishing the Constitution’s guarantee that executive power will be vested in a duly elected president.

While most of Sauer’s arguments seemed aimed at the judges, his presentation was also peppered with political fodder directed at audiences outside the courtroom.

He described Trump as President Joe Biden’s “number one political opponent” and “greatest political threat.” In one hypothetical, Sauer said denying immunity to Trump would make it possible for Biden to be prosecuted in federal court in Texas after leaving office for failing to secure the border with Mexico.

During his rebuttal argument near the end of the hearing, Sauer declared that Trump was “leading in every poll.” That’s a point Trump also emphasized at a post-hearing press conference at a nearby hotel.

Trump, who was not required to attend the hearing but left the campaign trail to do so, appeared largely stoic throughout the proceedings. He at times wrote some thoughts in sharpie on a legal pad that he shared with his legal team.

Smith was also present, flanked by top aides Michael Dreeben, Ray Hulser and James Pearce, who argued for the prosecutors.

When Pearce brushed off Trump’s claimed fear about a “vindictive tit-for-tat,” Trump visibly shook his head. He was accompanied in the courtroom by aides Boris Epshteyn and Walt Nauta, a co-defendant in a separate criminal case brought by Smith in Florida over Trump’s alleged hoarding of classified documents.

Trump was seated just a few feet away from Smith, whom he frequently calls “deranged.” Smith came into the room well before Trump and the two men did not appear to lock glances.

The judges picked at a tension in Trump’s legal arguments. Although Trump has claimed “absolute” immunity from prosecution for his official acts, his lawyers also concede that presidents can be prosecuted for those very actions if they’re first impeached and convicted by Congress. Trump was acquitted by Congress for his role in inciting the Jan. 6 insurrection, even though a majority of senators — including several Republicans — voted to convict him.

Pan pressed on that point, suggesting that if the panel disagreed with Trump’s view that impeachment must precede prosecution, then it must also permit Smith’s case to advance to trial.

“Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away,” Pan said.

Though the panel seemed to largely agree that Trump’s sweeping claims of immunity from prosecution went too far, the judges splintered when they discussed how broad or narrow their eventual decision should be.

Childs suggested that the court may be required by Supreme Court precedent to avoid ruling on the immunity issue now. That’s because criminal defendants typically can’t appeal issues in their cases until after trial. Under this theory, the D.C. Circuit could simply dismiss Trump’s appeal and allow the trial to proceed.

Pan at one point called the theory “persuasive,” but also seemed open to rejecting Trump’s broad immunity argument on the merits at this stage in the case.

The judges also wondered whether they should issue a blanket decision simply rejecting the notion that former presidents enjoy any immunity from criminal prosecution — an outcome favored by Smith and his team — or a narrower ruling that focused on the specifics of Smith’s charges against Trump.

Henderson asked whether the panel should consider sending the matter back to Chutkan and directing her to determine which of the charges and acts cited in the indictment against Trump are plausibly related to his official duties. That would complicate Smith’s efforts by limiting the evidence he could present and would almost certainly cause additional delays in getting the case to trial.