Judges push back against Trump’s immunity claim in the election interference case

Former President Donald Trump made a rare Tuesday appearance in a courtroom in Washington, D.C., for a make-or-break moment in his federal election interference case.

In arguments that extended for more than an hour, three judges for the U.S. Court of Appeals for the D.C. Circuit pressed Trump’s attorney on his sweeping claims of immunity from federal prosecution.

“To authorize the prosecution of a president for his official acts will open a Pandora’s box from which this nation will never recover,” Trump attorney Dean John Sauer told the panel.

Judge Florence Pan interrupted to ask, “In your view, can a president sell pardons or sell military secrets? Those are official acts.”

“Can a president order SEAL Team 6 to assassinate a political rival” and not be charged with a crime? continued Pan, an appointee of President Biden.

Sauer said a president would need to be impeached and convicted first. Trump was impeached by the House (twice) but not convicted by the Senate.

“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate federal law,” said Judge Karen LeCraft Henderson, who was appointed by President George H.W. Bush.

Trump has pleaded not guilty to four felony counts that accuse him of leading a conspiracy to cling to power and disenfranchise millions of voters in 2020. Prosecutors say that this culminated in violence at the U.S. Capitol three years ago that injured 140 law enforcement officers and shook the foundations of American democracy.

Arguments in the case

Trump attorneys John Lauro and Todd Blanche have asserted that those charges are based on official actions Trump took while he was president — and that Trump was simply raising questions about the integrity of the election.

They also argue that because Trump was impeached by the House of Representatives, but not convicted by the U.S. Senate, for his behavior around the Capitol riot, to prosecute him now would violate the principle against double jeopardy.

“I wasn’t campaigning, the Election was long over,” Trump wrote in a social media post this week, announcing his intention to appear at the courthouse in the District of Columbia for the first time since his arraignment last August. “I was looking for voter fraud and finding it, which is my obligation to do, and otherwise running the country.”

No evidence has emerged of fraud in the 2020 presidential election that would have changed the outcome of the race, as independent experts and many of Trump’s own Cabinet officials publicly concluded.

Inside the courtroom

Trump entered the fifth-floor courtroom shortly before the arguments got underway at 9:30 a.m. Wearing a navy suit and red tie, he asked his attorneys, “Where should I sit?”

He appeared to pay attention to the proceedings, nodding, taking notes and occasionally passing notes to his legal team, according to pool reports from journalists in the courtroom.

Among those who joined Trump there were Walt Nauta, his longtime valet who faces separate criminal charges alongside Trump in a federal case in Florida. Special counsel Jack Smith also attended with several members of his team and what appeared to be a security detail.

Prosecutors working for Smith say in court papers that if the U.S. Court of Appeals accepts Trump’s sweeping claims, it would “undermine democracy.” The special counsel team says such reasoning would give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.

James Pearce, representing the special counsel, argued Tuesday that “the president has a unique constitutional role, but he is not above the law.” He added that a former president enjoys no immunity from criminal prosecution. To conclude otherwise, he said, would give rise to a “frightening” future.

No former president has ever been charged with a crime. Trump is the first. So an eventual ruling will be a landmark no matter which way the court rules. If the court sides with Trump, the federal case in Washington would be all but over.

Record of past presidents

As for resolving the criminal immunity question, history might be a guide. Former President Richard Nixon eventually received a pardon from his successor, Gerald Ford, after the Watergate scandal. And courts have found that presidents have some shield from civil liability in lawsuits over money damages, if the claims relate to their work as president. The Justice Department said Trump was acting like a political candidate, not as president, when he tried to cling to power in 2020 and early 2021.

If the judges move quickly and agree with prosecutors, it’s possible the trial set for March 4 could experience only brief delays. But if Trump asks the full appeals court to hear the case or moves to the U.S. Supreme Court, any trial this year might stall. Prosecutors asked for the court to rapidly issue a “mandate” that would limit Trump’s efforts to delay the next steps.

Already Trump’s serious legal troubles — he is fighting 91 criminal charges in four separate U.S. jurisdictions — are clashing with the political calendar.

The former president has signaled that he could seek to dismiss the federal cases against him in the District of Columbia and Florida if he regains the White House. His lawyer in Georgia recently suggested Trump may try to delay the election interference case against him in Fulton County, Ga., until 2029.

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