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Trump’s Claim of Immunity Reaches Appeals Court

In World
January 09, 2024

Federal prosecutors and lawyers for former President Donald Trump will square off Tuesday morning in front of an appeals court in Washington to debate one of the most important questions surrounding the criminal indictment accusing him of plotting to overturn the 2020 election: whether Trump is immune to the charges because they arose from actions he took while in the White House.

The hearing in front of a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit could help decide when — or even whether — Trump will go to trial in the election interference case, which is unfolding in U.S. District Court in Washington, just downstairs from where the appeals court sits. It could also go a long way in determining the timing of the three other criminal trials Trump is facing in the months ahead.

Adding yet another jolt to the hearing, the former president has said on social media that he plans to attend it in person even though he is not required to be there and appellate judges often prefer to hear cases as intellectual exercises without the presence of defendants. Trump’s appearance is a further sign of just how much he has placed fighting his criminal prosecutions at the heart of his political strategy heading into the Republican primary campaign.

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When Trump’s lawyers argue to the court, they will be playing a long shot, hoping to persuade the judges that the Constitution affords him total immunity from prosecution for any actions he undertook as president. Without immunity for official acts, future presidents could face an onslaught of partisan-driven charges for things they did in office, his lawyers are expected to argue.

Such an assertion has never been fully tested by the courts, but then winning the appeal is only one of Trump’s goals. He is also hoping that the debate about immunity can chew up enough time to postpone the election trial — now set to start in early March — until after Election Day.

Already, Trump’s immunity defense, which was first raised in October, has bounced around various federal courts for more than three months, forcing the trial judge, Tanya Chutkan, to put the underlying case on hold until the issue is resolved. The Supreme Court declined a request last month to jump ahead of the appeals court and consider the question itself on an expedited schedule, although the appellate judges fast-tracked the case when it returned to them, ordering the defense and prosecution to file their papers on two successive Saturdays just before the holidays. The appeals court is also expected to issue a decision fairly quickly.

The question of immunity may end up back at the Supreme Court, but even if the justices eventually reject Trump’s arguments, the time consumed by the litigation could help the former president pursue his strategy of running down the clock. If that happens and Trump wins the election, he could seek to order the charges against him to be dropped or try to pardon himself.

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.

Prosecutors working for special counsel Jack Smith, who filed the case against Trump, are expected to argue that nothing in the Constitution or U.S. history supports the idea that former presidents are above being subject to federal criminal law.

They may also tell the judges that Trump was not acting in his role as president when he undertook an array of efforts to reverse his defeat in 2020, but was rather working in a private role as a candidate seeking reelection.

The appeals court has asked both sides to be prepared to discuss an additional question: Whether Trump’s appeal of the immunity issue was premature and should be considered only if he is convicted at trial.

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