WASHINGTON – Appeals court judges signaled Tuesday that they will likely reject Donald Trump's claims that he is immune from prosecution in his election interference case. The outcome seemed clear during arguments that touched on a range of political and legal considerations.
The Republican presidential primary front-runner made his first trip in months to Washington's federal courthouse, where his lawyers sought to convince an appeals court to dismiss the case charging him with plotting to overturn the results of the 2020 election. The defense's argument was met with outright skepticism by the three-judge panel of the U.S. District Court of Appeals for the D.C. Circuit.
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The judges did not say when they might rule, but the timing of their decision is crucial with a March 4 trial date looming. Trump's lawyers, who are hoping to delay the case beyond the November presidential election, are certain to go to the U.S. Supreme Court if the D.C. court sides with special counsel Jack Smith.
A look at some of the key moments from Tuesday's arguments:
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THE JURISDICTION DEBATE
At the very outset of the arguments — before Trump’s lawyer even began making his case for immunity — Judge J. Michelle Childs peppered him with questions about whether it's proper for the court to consider Trump's appeal at this time.
Most issues in criminal cases can’t be appealed until after a trial verdict, though there are certain circumstances when a defendant can appeal immediately. Smith’s team has not challenged the appeals court’s ability to hear the immunity issue ahead of trial. But a watchdog group called American Oversight filed a friend-of-the-court brief arguing that the appeals court should dismiss Trump’s challenge because Supreme Court precedent shows that it lacks jurisdiction to consider the issue now. If the appeals court agrees that it lacks jurisdiction, it would send the case back to the trial court before even deciding the immunity issue.
Trump’s attorney, D. John Sauer, told the judges that presidential immunity is clearly an issue meant to be resolved before trial. He argued that legal precedent supports the idea that the appeals court is right to consider the immunity claim at this time.
DRONE STRIKES AND SEAL TEAM SIX
The conduct being argued before the court concerned Trump's efforts to undo the election results, but that didn't stop the judges and lawyers from debating how the concept of presidential immunity could be applied in a range of hypothetical scenarios.
In the telling of Sauer, Trump's attorney, allowing the prosecution of Trump would also mean that a president could be charged with giving false information to Congress to induce the nation into war or for authorizing drone strikes on a U.S. citizen abroad.
When Judge Florence Pan asked Sauer if a president who ordered SEAL Team 6 to assassinate a political rival could be charged, the attorney appeared to equivocate, saying the president would first have to have been impeached and convicted by the Senate in order to be prosecuted. That's in keeping with the defense argument that immunity applies to former presidents who, like Trump, have been impeached but acquitted.
Later, James Pearce, a member of Smith's team, expressed exasperation at that argument, saying, “What kind of world are we living in?” if a president could escape accountability for such an action.
“I think that's an extraordinarily frightening future,” he said.
TRUMP'S IMPEACHMENT ACQUITTAL
Part of Trump’s argument is that the Constitution prevents his prosecution because he was acquitted by the U.S Senate of inciting the Jan. 6, 2021, attack in his historic impeachment trial. The defense argues that the Constitution’s impeachment judgment clause suggests that a president can be criminally charged only if he is impeached and convicted of similar conduct.
Judge Pan, however, highlighted comments made by the lawyer who represented Trump during his impeachment trial as he urged senators to acquit. During that trial, attorney David Schoen said there is a judicial and investigative process in this country “to which no former office holder is immune," telling senators: “That’s the process that should be running its course.”
Pan repeatedly pressed Sauer over whether he believes that Trump could be prosecuted in this case had he been convicted by the Senate. Sauer said that a prosecution could potentially be brought in that situation, though he said he was not conceding that this particular case would be appropriate, telling the judge there are a “tons of other problems” with it.
Pearce, the prosecutor on Smith’s team, said Trump’s impeachment argument is wrong for a host of reasons, including practical ones.
“It would mean that if a former president engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted, there is no accountability for that individual. And that is frightening,” he told the judges.
‘CHIEF POLITICAL OPPONENT’
The arguments mostly focused on the Constitution and the intricacies of case law and legal immunity.
But the politics of the case were never far from the surface, especially with Trump taking a break from the campaign trail so that he could attend in person. His campaign sought ahead of time to fundraise off the appearance, writing in an email solicitation that Trump would be heading “into the belly of the beast.”
And speaking later to reporters, he insisted that his prosecution posed a “real threat to democracy.”
There is no indication that President Joe Biden has had any influence on the case, and in fact, Attorney General Merrick Garland appointed Smith in 2022 as a way to try to insulate the Justice Department from claims of political bias.
But at times during Tuesday's arguments, Trump's lawyer echoed the words of his own client.
“We are in a situation where we have the prosecution of the chief political opponent who’s winning in every poll ... and it’s being prosecuted by the administration that he’s seeking to replace,” Sauer said.
He added: “That is the frightening future. That is tailor-made to launch cycles of recrimination elimination that will shape our republic for the future.”
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Richer reported from Boston.