Appeals court in Trump immunity hearing skeptical of Trump’s claim | ET REALITY


A federal appeals court on Tuesday expressed deep skepticism about former President Donald J. Trump’s claim that he is immune from charges of conspiracy to subvert the 2020 election, suggesting it is unlikely to rule in his favor in a central element of its defense.

As Trump watched, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit peppered his lawyer, D. John Sauer, with tough questions about his claim that his client could not be prosecuted for the actions he took while in the White House. The justices seemed incredulous when Sauer said a president could use the military to assassinate a political rival and be protected from prosecution unless the Senate first found him guilty in an impeachment proceeding.

At another point, Judge Karen L. Henderson, the only Republican appointee on the panel, appeared to reject a central part of Trump’s argument: that his efforts to overturn his loss to Joseph R. Biden Jr. cannot be subject to prosecution because the Presidents have a constitutional duty to ensure that electoral laws are respected.

“I think it is paradoxical to say that your constitutional duty to see that the laws are faithfully executed allows you to violate the criminal law,” Judge Henderson said.

Still, the panel seemed divided at times over how broadly it could rule, with Judge Henderson suggesting that a sweeping decision to deny immunity to former presidents could result in a flood of partisan prosecutions. He also raised the possibility of sending the matter back to the trial judge, Tanya S. Chutkan, for additional scrutiny on issues such as whether Trump’s actions should be considered official or private. Such a measure would favor the former president’s desire to delay the trial on the electoral charges.

Regardless of how the panel ultimately decides, the question of immunity is likely to reach the Supreme Court, which is already hearing another crucial question about whether Trump can be removed from state ballots.

The pace and outcome of the immunity issue will play a major role in deciding when (or if) Trump goes to trial in the election interference case. They could also go a long way toward determining the timing of the three other criminal trials Trump faces in the coming months.

Trump attended the hearing in person even though he was not required to be there. Dressed in a dark blue suit and red tie, he sat at the far right of his attorney’s table, sometimes whispering to another attorney, Will Scharf. He was largely impassive, but when the panel’s two Democratic appointees, Judge J. Michelle Childs and Judge Florence Y. Pan, questioned Sauer, Trump leaned forward in his chair and stared at them.

Several times as James I. Pearce, who represented the government, spoke, Trump and his lawyers exchanged notes on a yellow legal pad.

The question of immunity has already been circulating in various federal courts for more than three months. Judge Chutkan has put the underlying case, in which Trump faces four criminal charges related to his efforts to remain in office after his election loss, on hold until the issue is resolved.

But winning the immunity appeal has always been just one of Trump’s goals. He also hopes that protracted litigation could consume enough time to postpone the election trial, which will now begin in early March, until after Election Day. If he takes back the White House, then he could order the charges against him to be dropped or try to pardon himself.

In a difficult moment for Trump during Tuesday’s hearing, Judge Henderson refuted Sauer’s argument that for more than 200 years, American courts had never tried actions a president had taken while in office.

Judge Henderson noted that until Trump was impeached, courts had never had to consider former presidents’ criminal liability for things they had done while in the White House.

Still, Judge Henderson, echoing one of Mr. Sauer’s arguments, expressed concern that allowing the election case to go to trial could open the “floodgates” for future former presidents to be prosecuted for things that they did while they were in office.

Pearce, speaking on behalf of the prosecution, disagreed, arguing that Trump was an aberration and that prosecuting him would not result in a flood of partisan accusations. He argued that it has long been clear (at least since Richard M. Nixon accepted a pardon after resigning during the Watergate scandal) that presidents can be impeached for crimes they committed while in office.

Judge Pan and Judge Childs appeared united in expressing doubt about Mr. Trump’s immunity claims.

At one point, Judge Pan presented Sauer with a hypothetical situation and asked him whether a president could be criminally charged for ordering SEAL Team 6 (a military commando unit) to assassinate a political rival. Sauer said that in that situation an indictment would only be possible if the president had first been found guilty in an impeachment process.

When Mr Pearce addressed the court he used that example. He warned of “an extraordinarily terrifying future” if a president could order the military to assassinate a rival and then evade criminal responsibility by simply resigning before he could be impeached or avoid conviction in the Senate.

Judge Pan also noted that Mr. Sauer had admitted on some occasions that presidents were not immune from prosecution for official acts, if only after they had been convicted in an impeachment proceeding. He said Trump’s broader claims about immunity would therefore depend on whether that was the only circumstance in which courts could criminally adjudicate a sitting president’s actions.

As the hearing began, Judge Childs joined Judge Henderson in pressing Mr. Sauer on a separate issue: whether the appeals court had jurisdiction to decide the immunity question. A friend-of-the-court brief filed in the case argued that the appeal was premature and should be heard only if Trump is found guilty at trial.

In a rare case of agreement, lawyers for both sides urged the court to consider the legal merits of the issue rather than wait.

In a fundraising email Monday night, Trump had falsely said he was being forced to leave the campaign trail to attend the arguments. The move underscored his effort to stoke anger over his criminal cases as campaign fodder less than a week before the Republican primary begins with the Iowa caucuses. He spent Monday night at his golf club in Sterling, Virginia, according to a person familiar with the planning, and a caravan of vehicles took him to the courthouse parking lot.

When the hearing ended, Trump stood with the rest of the packed courtroom as the three judges left, then looked over his shoulder at the audience and slowly left the courtroom through a side door, followed by his legal team.

His motorcade then took him to the Waldorf Astoria Hotel, a few blocks away, which he owned and operated as the Trump International Hotel when he was in office, to report his prosecution.

“I think it’s very unfair for a political opponent to be prosecuted,” he said.

Maggie Haberman contributed reporting from New York.

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