Trump’s immunity claim in court

It appears Donald Trump hit a wall today as he emphasized his position that he cannot be criminally charged for his efforts to cling to power after losing the 2020 election. It came in the form of three federal judges of the court of appeal.

As Trump looked on alongside his lawyers in the Washington courtroom, the justices poked holes in the legal reasoning behind his claims that presidents cannot be prosecuted for actions they take while in office. By the time they were done, there wasn’t much doubt that they were inclined to reject this central element of Trump’s defense in the election subversion case.

“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 statutes,” said Judge Karen Henderson, the only Republican appointee on the three-judge panel that ruled heard the arguments.

The court seemed especially dismissive of Trump’s lawyer, D. John Sauer,’s assertion that the only way to hold a president accountable for crimes was to first secure a conviction in impeachment proceedings.

“I ask a yes or no question: Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, be subject to criminal charges,” Judge Florence Pan asked.

“If he were impeached and convicted first,” Sauer responded — an answer that amounted to a bold “no.”

How extensively the justices will rule on the issue of presidential immunity remains to be seen.

The case will almost certainly end up in the lap of the Supreme Court, which will hear a separate case next month on whether Trump can be disqualified from state ballots for his role in encouraging the Jan. 6 attack on the Capitol.

No cameras, no show

The day also didn’t go very well for Trump’s attempt to turn the appeals process into a bit of political theater, as counterprogramming to the more traditional campaigning underway in Iowa, where the caucuses will kick off the 2024 vote in less than a week to take.

He was not required to attend the hearing – indeed it is unusual for a defendant, let alone a former president, to be present at oral arguments on appeal. But Trump chose to do so as part of his increasing efforts to portray any lawsuits against him as politically motivated, a recurring theme he has used to build support as the Republican primary season gets underway.

In this case, however, the protocols of a federal courthouse worked against him — no cameras were allowed, for starters — and his brief appearance after the hearing took place without any notice to reporters at the downtown hotel he owned during his presidency, but then sold after leaving office.

Instead, it was the appeals court judges who made headlines, especially Judge Pan, whose investigation into Trump’s immunity claim led to the hypothetical situation that even non-lawyers could relate to: what if a president ordered Navy commandos to carry out the assassination of a rival politician?

Sauer, the former president’s lawyer, responded that a president who did such a thing would certainly be impeached and convicted. And yet, remarkably, he emphasized that the courts would not have the jurisdiction to take matters into their own hands and oversee a murder trial unless a guilty verdict was returned during the impeachment trial.

If he decides otherwise, it would open the door to routine prosecutions of former presidents whenever the White House changes hands. (He didn’t mention that Trump, who in his campaign called for “retaliation” against his opponents, has repeatedly hinted that he would do just that if he takes power again.)

James Pearce, an attorney for special counsel Jack Smith, seemed shocked by Sauer’s argument, pointing out that under his theory, presidents could literally get away with murder if they simply resigned before impeachment charges were filed. Advocating such a limitless version of presidential immunity was not only wrong, Pearce said, but also a vision of “an extremely frightening future.”

Pearce further rejected the idea that allowing the case to proceed would be a “major change” that would open the door to “vindictive prosecutions in the future.” Instead, he reminded everyone in the court that Trump was the first former president in American history ever charged with crimes, underscoring the “fundamentally unprecedented nature” of Trump’s prosecutions.

“Never before have there been allegations that a sitting president, together with private individuals and using the tools of power, has attempted to fundamentally undermine the democratic republic and the electoral system,” he said.

“Frankly, if that kind of fact pattern were to occur again,” Pearce continued, “I think it would be very frightening if there wasn’t some sort of mechanism to achieve that in a criminal manner.”

While the appeals court has rushed through the holidays to get ready for today’s hearing, it is not clear when the panel will rule. Depending on the outcome, both Trump and the prosecutors could appeal. The case could be appealed before the full appeals court – all 11 active judges – or directly before 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 judge, Tanya Chutkan, has frozen the underlying case until the immunity issue is resolved. Tentatively, the case will 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 Trump won the election, he could try to pardon himself or otherwise use his control of the Justice Department to end the case against him.

Your questions

We ask readers what they want to know about the Trump cases: the indictment, the proceedings, the key players or whatever. You can submit your question to us by completing this form.

How do the Supreme Court cases impact the Georgia process? – Matt Brightwell, York, South Carolina.

Alan: The Supreme Court’s final decision on Trump’s immunity claims in the federal case accusing him of trying to overturn the 2020 election could impact similar criminal charges in Georgia. This week, his Georgia lawyer filed an immunity defense to that charge that was very close to the one his lawyers in Washington are trying to deal with. If the Supreme Court considers the immunity defense, it could have a direct effect on the defense in Georgia. But there’s one caveat: The defense the Supreme Court is likely to review is aimed specifically at protecting Trump from federal charges.

Where is each criminal case?

Trump is at the center of at least four separate criminal investigations, at both the state and federal level, into matters related to his business and political careers. Here’s where each case currently stands.