Five takeaways from the Court of Appeals hearing on Trump’s immunity claim | ET REALITY


A three-judge panel of the federal appeals court in Washington heard arguments Tuesday in a landmark case over former President Donald J. Trump’s claim that he is immune from criminal charges for his efforts to overturn the 2020 election.

A ruling by the court (and when it issues that decision) could be a major factor in determining when, or even if, Trump goes to trial in the federal election case.

Here are some conclusions:

Judges on the District of Columbia Circuit Court of Appeals seemed unlikely to dismiss the charges against Trump on presidential immunity grounds, as he had asked them to do. The two Democrats appointed to the court, Judge J. Michelle Childs and Judge Florence Y. Pan, peppered Trump’s lawyer John Sauer with tough questions.

Judge Karen L. Henderson, the only Republican appointed to the panel, appeared to reject a central part of Trump’s argument: that his efforts to overturn his loss to President Biden cannot be subject to prosecution because presidents have a constitutional duty to ensure that electoral laws are maintained.

“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, Judge Henderson also expressed concern that allowing the case to proceed could “open the floodgates” of prosecutions of former presidents. He raised the possibility of sending the case back to the Federal District Court judge overseeing pretrial proceedings, Tanya S. Chutkan, for greater scrutiny over how to consider Trump’s actions.

Judge Pan asked Mr. Sauer to address a series of hypotheses intended to test the limits of his position that presidents are absolutely immune from criminal prosecution for their official acts unless they have first been indicted and convicted. by the Senate for the same matter.

Among them, he asked: What would happen if a president ordered SEAL Team 6, the Navy’s commando unit, to assassinate a political rival of a president? Sauer said such a president would surely be impeached and convicted, but insisted that courts would have no jurisdiction to oversee a murder trial unless that happened first.

Deciding otherwise, Sauer said, would open the door to routine prosecutions of former presidents every time the White House changes partisan hands.

Returning to the hypothesis of a president who uses SEAL Team 6 to kill a rival and then escapes criminal responsibility by simply resigning before he can be impeached or avoiding a conviction in the Senate, James I. Pearce, attorney for special counsel Jack Smith, denounced Mr. Sauer’s argument. That reasoning, he added, presented an understanding of presidential immunity that was not only flawed but also a vision of “an extraordinarily terrifying future.”

He also rejected the idea that allowing the case to move forward would be a “radical change” that would open the door to “vindictive tit-for-tat prosecutions in the future.” Instead, he said, the fact that Trump is the first former president to be charged with crimes underscores the “fundamentally unprecedented nature” of the criminal charges. He continued: “Never before have there been accusations that a sitting president, with private individuals and using the levers of power, has sought to fundamentally subvert the democratic republic and the electoral system.”

Mr Pearce added: “Frankly, if that sort of fact pattern were to emerge again, I think it would be terribly frightening if there wasn’t some sort of mechanism by which to get there criminally.”

In an unusual move, Trump appeared in person at the appeals court hearing, although he was not required to be there. But if he hoped to turn the appearance to his political advantage, the effort fell somewhat flat.

He was led to the federal courthouse through a heavily guarded back entrance and did not address the dozens of journalists covering the proceedings. And during the hearing he remained silent, doing little more than exchanging notes with his lawyers and looking at the judges who will decide his fate.

Trump was then taken a few blocks to the Waldorf Astoria Hotel, which he once operated under his name, and reported his indictment on charges of election interference. He also reiterated his false claims that there was widespread fraud in the 2020 election.

“We had a very momentous day in terms of what we learned,” he told reporters. “I think it’s very unfair for a political opponent to be prosecuted.”

It is unclear when the appeals panel will issue its ruling. Depending on its outcome, Trump or prosecutors could appeal it. The case could be appealed to the full appeals court (all 11 active judges) or directly to the Supreme Court.

Any of those courts could decide whether to take up the matter or decline to get involved and leave the panel’s ruling in place.

How quickly this all plays out could be almost as important as the end result. After all, trial judge Tanya S. Chutkan has frozen the underlying case until the immunity issue is resolved. For now, the case will go before a jury in early March, but prolonged litigation could delay it, perhaps even beyond the November election.

If that happened and Trump won the election, he could try to pardon himself or use his control of the Justice Department to end the case against him.

Cristina Kelso Contributed to video production.

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