5 lessons from the Court of Appeals hearing on Trump’s immunity claim

A three-judge panel of the federal appeals court in Washington heard arguments Tuesday in a weighty case involving former President Donald J. Trump’s claim that he is immune from criminal prosecution because of the efforts he made to sway the 2020 election. to undo.

A court ruling — and when that decision is made — could be a major factor in determining when, or even if, Mr. Trump will go to trial in the federal election case.

Here are some takeaways:

All three judges expressed skepticism about Trump’s position.

It seemed unlikely that the judges of the Court of Appeals for the District of Columbia Circuit would dismiss the charges against Mr. Trump on the grounds of presidential immunity, as he had asked them to do. The two Democratic appointees on the court, Judge J. Michelle Childs and Judge Florence Y. Pan, bombarded John Sauer, a lawyer for Mr. Trump, with tough questions.

Judge Karen L. Henderson, the panel’s only Republican nominee, appeared to reject a central part of Mr. Trump’s argument: that his efforts to overturn his loss to President Biden cannot be prosecuted because presidents have a have a constitutional duty to ensure that election laws are enforced.

“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.

Yet Judge Henderson also expressed concern that allowing the case to proceed could “open the floodgates” of prosecutions of former presidents. She raised the possibility of sending the case back to Tanya S. Chutkan, the Federal District Court judge overseeing the preliminary proceedings, for more investigation into how to review Mr. Trump’s actions.

A Trump lawyer took a sweeping stance on a hypothetical murder.

Judge Pan asked Mr. Sauer to raise a series of hypotheses designed to test the limits of his position that presidents are absolutely immune from criminal prosecution for the actions of their officials unless they are first cleared by the Senate impeached and convicted over the same issue.

Among them, she wondered, what if a president ordered SEAL Team 6, the Navy’s commando unit, to kill a president’s political rival? Mr. Sauer said such a president would certainly be impeached and convicted, but he emphasized that courts would not have jurisdiction to oversee a murder case unless that happens first.

To rule otherwise, Mr. Sauer said, would open the door to the routine prosecutions of former presidents whenever the White House changes partisan ownership.

One prosecutor argued that absolute immunity would be “frightening.”

Playing on the hypothesis of a president using SEAL Team 6 to assassinate a rival and then escaping criminal liability by simply resigning before he can be impeached or avoiding a conviction in the Senate, James I. Pearce, an attorney for Special Counsel Jack Smith criticized Mr. Sauer’s argument. Such reasoning, he added, advanced an understanding of presidential immunity that was not only wrong, but also a vision of “an extremely frightening future.”

He also dismissed the idea that allowing the case to proceed would be a “reversal” that would open the door to “vindictive prosecutions in the future.” Instead, he said, the fact that Mr. Trump is the first former president ever charged with crimes underscored the “fundamentally unprecedented nature” of the criminal prosecution. He continued: “Never before have there been allegations that a sitting president, working with private individuals and using the tools of power, has attempted to fundamentally undermine the democratic republic and the electoral system.”

Mr Pearce added: “Frankly, if that sort of fact pattern were to arise again, I think it would be incredibly frightening if there wasn’t some sort of mechanism to achieve that in a criminal way.”

Trump tried to engage in political theater.

In an unusual move, Mr. Trump appeared in person at the appeals court hearing, even though he was not required to be there. But if he hoped to turn appearances to his political advantage, the effort was a bit disappointing.

He was led into the federal courthouse through a heavily guarded back entrance and did not address the dozens of reporters covering the proceedings. And during the hearing itself, he remained silent, doing little more than exchanging notes with his lawyers and staring at the judges who will decide his fate.

Afterwards, Mr. Trump was driven a few blocks away to the Waldorf Astoria Hotel, which once operated under his name, and denounced his prosecution on election interference charges. He also repeated his false claims that widespread fraud occurred in the 2020 election.

“We had a very memorable day in terms of what was learned,” he told reporters. “I think it is very unfair when a political opponent is prosecuted.”

What’s next: The judges will decide, but the timing is unclear.

It is not clear when the appeal panel will make a ruling. Depending on the outcome, Trump or prosecutors could appeal it. The case can be appealed to the full Court of Appeal – all eleven active judges – or directly to the Supreme Court.

Each of these courts could decide whether to hear the case or refuse to intervene and uphold the panel’s ruling.

How quickly all this plays out can be almost as important as the final outcome. The trial judge, Tanya S. Chutkan, has frozen the underlying case until the immunity issue is resolved. Tentatively, the case is set to go before a jury in early March, but protracted litigation could delay the case — perhaps even until after the November election.

If that were to happen and Mr. Trump were to win the election, he could try to pardon himself or otherwise use his control of the Justice Department to end the case against him.

Christina Kelso video production contributed.