By Alan Feuer, Charlie Savage, Eileen Sullivan and Glenn Thrush
A federal appeals court expressed deep skepticism earlier this week about former President Donald Trump’s claim that he is immune from charges of plotting to subvert the 2020 election, suggesting that it is unlikely to rule in his favor on a central element of his defense.
As 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 assertion that his client could not be prosecuted for actions he took while in the White House. The judges seemed incredulous when Sauer said a president could use the military to assassinate a political rival and be shielded from prosecution unless the Senate first convicted him at an impeachment proceeding.
At another point, Judge Karen LeCraft Henderson, the panel’s sole Republican appointee, seemed to reject a central part of Trump’s argument: that his efforts to overturn his loss to Joe Biden cannot be subject to prosecution because presidents have a constitutional duty to ensure that election laws are upheld.
“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate the criminal law,” Henderson said.
Still, the panel seemed torn at times about how broadly it might rule, with Henderson suggesting that a sweeping decision to deny immunity to former presidents could result in a flood of partisan prosecutions. She also raised the prospect of sending the issue back to the trial judge, Tanya Chutkan, for additional scrutiny on issues such as whether Trump’s actions should be thought of as official or private. Such a move would play into the former president’s desire to delay a trial on the election charges.
Regardless of how the panel ultimately rules, the issue of immunity is likely to reach the Supreme Court, which is already hearing another crucial question about whether Trump can be removed from state ballots.
The pace and outcome of the immunity question will play a major role in deciding when — or whether — 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 is facing in the months ahead.
Trump attended the hearing in person even though he was not required to be there. Wearing a dark blue suit and a red tie, he sat at the far right of his lawyers’ table, sometimes whispering to another attorney, Will Scharf. He was largely stone-faced, but when the panel’s two Democratic appointees — Judge J. Michelle Childs and Judge Florence Pan — were questioning Sauer, Trump leaned forward in his chair and stared intently at them.
Several times while James Pearce, who represented the government, was speaking, Trump and his lawyers exchanged notes on a yellow legal pad.
The question of immunity has already bounced around various federal courts for more than three months. Chutkan has put the underlying case, in which Trump is facing four criminal counts related to his efforts to remain in office after his election loss, on hold until the issue is resolved.
But winning the immunity appeal has always been only one of Trump’s goals. He is also hoping that protracted litigation can eat up enough time to postpone the election trial — now set to start in early March — until after Election Day. If he retakes the White House, he could then seek to order the charges against him to be dropped or try to pardon himself.
In one tough moment for Trump during the hearing Tuesday, Henderson rebutted Sauer’s argument that for more than 200 years, American courts had never sat in judgment over actions that a president had taken while in office.
Henderson pointed out that until Trump was indicted, courts had never had to consider the criminal liability of former presidents for things they had done while in the White House.
Still, Henderson, echoing one of Sauer’s arguments, expressed concern that allowing the election case to go to trial could open the “floodgates” to future former presidents being prosecuted for things they did in office.
Pearce, speaking for the prosecution, disagreed, arguing that Trump was an aberration and that prosecuting him would not result in an onslaught of partisan indictments. He maintained 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 charged for crimes they committed in office.
Pan and Childs appeared to be unified in expressing doubt about Trump’s immunity claims.
At one point, Pan presented Sauer with a hypothetical situation, asking if a president could be criminally charged for ordering SEAL Team 6 — a military commando unit — to assassinate a political rival. Sauer said that a prosecution would be possible in that situation only if the president had first been found guilty in an impeachment proceeding.
When Pearce addressed the court, he seized on that example. He warned of “an extraordinarily frightening future” if a president could order the military to murder a rival and then escape criminal liability by simply resigning before he could be impeached or otherwise avoid a conviction in the Senate.
Pan also noted that Sauer had conceded some occasions when presidents were not immune from prosecution for official acts, if only after being convicted at an impeachment proceeding. She said Trump’s broader claims about immunity would therefore hinge on whether that was the only circumstance when courts could sit in criminal judgment of a president’s actions in office.