Court of Appeals seems skeptical about Trump’s immunity claim

A federal appeals court expressed deep skepticism Tuesday about former President Donald J. Trump’s claim that he is immune from charges of conspiring to undermine the 2020 election, suggesting it is unlikely to rule in his favor on a central element of his defense.

As Mr. Trump looked on, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit peppered his lawyer, D. John Sauer, with tough questions about his claim that his client could not be prosecuted for actions he took during his stay at the White House. The justices appeared incredulous when Mr. Sauer said a president could use the military to kill a political rival and be shielded from prosecution unless the Senate first convicted him in impeachment proceedings.

At another point, Judge Karen L. Henderson, the panel’s lone Republican appointee, appeared to reject a central part of Mr. Trump’s argument: that his efforts to cover his loss to Joseph R. Biden Jr. undoing cannot be prosecuted because presidents have a constitutional duty to ensure that election laws are followed.

“I think it is paradoxical to say that his constitutional duty to ensure that the laws are faithfully executed allows him to violate the criminal law,” Judge Henderson said.

Still, the panel at times appeared divided on how broadly it could rule, with Judge Henderson suggesting that a sweeping decision to deny immunity to former presidents could result in a tidal wave of partisan prosecutions. She also raised the prospect of sending the matter back to the judge, Tanya S. Chutkan, for additional investigation into issues such as whether Mr. Trump’s actions should be considered official or private. Such a move would respond to the former president’s desire to delay a trial on the election charges.

Regardless of how the panel ultimately rules, the immunity issue will likely reach the Supreme Court, which is already hearing another crucial question about whether Mr. Trump can be removed from the state ballot.

The pace and outcome of the immunity issue will play a major role in deciding when — and if — Mr. Trump will go to trial in the election interference case. They could also go a long way in determining the timing of the three other criminal trials Trump faces in the coming months.

Mr. Trump attended the hearing in person, even though he was not required to be there. Wearing a dark blue suit and red tie, he sat far right at his lawyers’ table, sometimes whispering to another lawyer, Will Scharf. He was largely stone-eyed, but when the panel’s two Democratic appointees — Judge J. Michelle Childs and Judge Florence Y. Pan — questioned Mr. Sauer, Mr. Trump leaned forward in his chair and stared at them attentively.

As James I. Pearce, who represented the administration, spoke, Mr. Trump and his lawyers exchanged notes on a yellow notebook several times.

The issue of immunity has been circulating in various federal courts for more than three months. Judge Chutkan put on hold the underlying case, in which Mr. Trump faces four criminal charges related to his efforts to remain in office after his election loss, until the matter is resolved.

But winning the immunity appeal has always been just one of Trump’s goals. He also hopes that protracted lawsuits can eat up enough time to delay the election process — which now begins in early March — until after Election Day. If he retakes the White House, he could try to drop charges against him or try to pardon himself.

In a difficult moment for Mr. Trump during Tuesday’s hearing, Judge Henderson countered Mr. Sauer’s argument that American courts had never ruled on actions taken by a president while in office for more than 200 years.

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

Still, Judge Henderson, echoing one of Mr. Sauer’s arguments, expressed concern that taking the election case to court could open the “floodgates” for future former presidents to be prosecuted for things they did while in office did.

Mr. Pearce, speaking for the prosecutor, disagreed, arguing that Mr. Trump was an aberration and that prosecuting him would not result in an onslaught of partisan charges. He asserted that it has long been clear — at least since Richard M. Nixon accepted a pardon after resigning during the Watergate scandal — that presidents can be indicted for crimes committed while in office.

Judge Pan and Judge Childs appeared to agree in expressing doubt about Mr. Trump’s immunity claims

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

When Mr Pearce addressed the court he used that example. He warned of “an extremely frightening future” if a president could order the military to kill a rival and then escape criminal liability by simply resigning before he could be impeached or otherwise avoid a conviction in the Senate .

Judge Pan also noted that Mr. Sauer had admitted some cases in which presidents were not immune from prosecution for official actions, if only after they had been convicted in impeachment proceedings. She said Mr. Trump’s broader claims of immunity would therefore hinge on whether that was the only circumstance in which courts could rule criminally on a president’s actions while in office.

As the hearing began, Judge Childs joined Judge Henderson in pressing Mr. Sauer on a separate question: whether the appellate court even had jurisdiction to decide the immunity question. A friend-of-the-court brief filed in the case argued that the appeal was premature and should only be heard if Mr. Trump is convicted at trial.

In a rare case of agreement, lawyers for both sides urged the court to consider the legal merits of the issue rather than wait.

In a fundraising email on Monday evening, Mr Trump had falsely said he was being forced off the campaign trail to attend the arguments. The move underscored his attempt to stoke discontent over his criminal cases as campaign fodder, less than a week before the Republican primaries begin with the Iowa caucuses. He spent Monday evening at his golf club in Sterling, Virginia, according to a person familiar with the planning, and a motorcade took him to the courthouse parking garage.

When the hearing ended, Mr. Trump stood up with the rest of the packed courtroom as the three judges left, then looked over his shoulder at the audience and slowly walked out of the room through a side door, followed by his legal team.

Then his motorcade took him to the Waldorf Astoria hotel a few blocks away, which he had owned and operated as the Trump International Hotel during his time in office, to denounce his prosecution.

“I think it is very unfair for a political opponent to be prosecuted,” he said.

Maggie Haberman contributed reporting from New York.