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Judges Seem Skeptical of Trump’s Claim of Immunity

In World
January 09, 2024

Three federal appeals court judges expressed deep skepticism Tuesday about former President Donald Trump’s central defense to an indictment accusing him of plotting to overturn the 2020 election: that he is immune to the charges because they arose from actions he took as president.

All of the judges on the three-member panel of the U.S. Court of Appeals for the District of Columbia Circuit — composed of two Democratic appointees and one Republican appointee — peppered a lawyer for Trump with tough questions about arguments he raised to support the immunity claims.

While the judges also pressed James Pearce — a lawyer representing special counsel Jack Smith — their queries to him were not quite as aggressive. The panel adjourned the hearing after about an hour and 15 minutes and reserved judgment for another day.

The case is expected to eventually reach the Supreme Court. Its pace and outcome will be central in deciding when — or even whether — Trump will go to trial in the election interference case, which is unfolding in U.S. District Court in Washington. It could also go a long way in determining the timing of the three other criminal trials that Trump is facing in the months ahead.

In one tough moment for Trump, who was present for the hearing but did not speak, Judge Karen Henderson, the sole Republican appointee on the panel, pushed back on an argument made by his lawyer, D. John Sauer, that for more than 200 years American courts had never sat in judgment over official actions that a president had taken while in office.

Henderson pointed out that until Trump was indicted, courts had never had to consider the criminal liability of former presidents for things they did in the White House.

Henderson also seemed less than convinced by Sauer’s argument that Trump was acting in his role as president and upholding his constitutional duty to preserve the integrity of the election when he sought to overturn his loss to President Joe Biden.

“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,” Henderson said.

At one point, Judge Florence Pan presented Sauer with an hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — an elite commando unit — to assassinate a political rival. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding.

When Pearce addressed the court on behalf of the special counsel’s office, he seized on Pan’s example. Pearce said it was a terrifying prospect that a president could use the military to kill a rival and then escape criminal liability by simply resigning before he could be impeached.

Pearce fended off a question by the judges asking if a ruling denying Trump immunity would trigger a flood of partisan charges against future presidents by arguing that Trump was a unique case as the only president in U.S. history to have been charged with a crime.

Because no former president has ever been prosecuted before, there are few definitive precedents to guide the appellate judges in deciding the question of immunity. While the Justice Department has long maintained a policy that sitting presidents cannot be indicted, Trump’s bid to claim total immunity from prosecution is a remarkable attempt to claim the protections of the presidency even though he is no longer in office.

But winning the appeal on the question of immunity is only one of Trump’s goals. He is also hoping that the litigation can eat up enough time to postpone the election trial — now set to start in early March — until after Election Day. If he retakes the White House, he could seek to order the charges against him to be dropped or try to pardon himself.

c.2024 The New York Times Company

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