By Alan Feuer
Lawyers for former President Donald Trump asked an appeals court in Washington on Saturday night to toss a federal indictment accusing him of plotting to overturn the 2020 election, arguing that he was immune to the charges because they arose from actions he had taken while he was in the White House.
The weekend filing to the U.S. Court of Appeals for the District of Columbia Circuit was the latest salvo in a long-running and crucial battle between Trump and the special counsel, Jack Smith, over whether the former president enjoys immunity to the election interference charges.
The fight over immunity has now touched all three levels of the federal court system, including the Supreme Court, which on Friday declined Smith’s request to intervene and hear the case before the appeals court. The ultimate resolution of the issue will have a significant effect not only on the overall viability of the election interference case, but also on whether a trial on the charges is postponed until the heart of the 2024 campaign — or even until after the election. At that point, if Trump wins the presidency, he could order the charges to be dropped.
In a 55-page brief to a three-judge panel of the court, D. John Sauer, a lawyer who has been handling appeals for Trump, argued that under the Constitution, judges cannot hold the president accountable for any acts undertaken while in office.
“Under our system of separated powers, the judicial branch cannot sit in judgment over a president’s official acts,” Sauer wrote, adding, “That doctrine is not controversial.”
But, of course, the fact that this issue was being debated on appeal suggested that it was at the center of a hotly contested controversy.
When Trump initially filed his motion to dismiss the election interference case, his lawyers essentially sought to turn the story told in Smith’s indictment on its head.
Prosecutors maintain that Trump has violated the law by seeking, among other things, to strong-arm state lawmakers to keep himself in power, and to pressure Justice Department officials to validate his claims that the election had been marred by fraud.
While the prosecutors described those steps as crimes, Trump’s lawyers attempted to reframe them as examples of the former president performing his official duty to protect the integrity of the election.
In his brief to the appeals court, Sauer argued that executive immunity must exist, given the fact that no president or former president had ever been charged with a crime before Trump.
“The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a president for official acts — despite ample motive and opportunity to do so, over centuries — implies that the power does not exist,” he wrote.
Sauer went on to claim that the trial judge, Tanya Chutkan, had erred in several ways when she decided the issue against Trump at the beginning of the month. In an order rejecting Trump’s immunity claims, Chutkan upheld a limited vision of presidential power, writing that there was nothing in the Constitution or America’s founding documents that supported the idea that a former commander in chief should not be subject to federal criminal law.
Chutkan had argued, for example, that Trump should not enjoy “a lifelong ‘get-out-of-jail-free’ pass,” and that, despite his former role as president, he should still be “subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”
But Sauer maintained that executive immunity was not meant so much to shield a president — or a former president — from legal responsibility, but rather to prevent a leader from falling prey to false accusations lodged by political enemies. He also said that the only way a former president could be subject to prosecution would be if he had been first impeached and convicted of similar offenses by Congress.
The immunity case is being heard by a panel made up of Judge Karen L. Henderson, who was appointed by President George H.W. Bush, and Judges Florence Y. Pan and J. Michelle Childs, who were both appointed by President Joe Biden.
The judges have agreed to work exceptionally quickly, setting out an expedited schedule for the case at Smith’s request. All written briefs are required to be filed by Jan. 2. The court intends to hold oral arguments Jan. 9.
On its own, the fact that the court ordered Trump’s lawyers to file their papers on the Saturday before Christmas suggests just how fast the appellate judges plan to move. Smith’s office is scheduled to file its own papers in the case the Saturday before New Year’s Eve.
The struggle between the defense and the prosecution over the speed of the appeal has been just as — or perhaps even more — contentious than the battle over the underlying legal issues. That is largely because Chutkan has put the case on hold as the appeal is being heard, imperiling the trial’s start date of March 4.
If the trial were to be pushed into the summer, it would coincide with the homestretch of Trump’s presidential campaign. Obliged to be in Washington each weekday for two or three months, the former president would almost certainly bring his campaign to the courthouse steps, turning the proceeding into even more of a media circus than it already promises to be.
The schedule of the election subversion trial in Washington could also have a significant impact on the timing of Trump’s three other criminal cases. It has been a challenge to find time on the calendar for each of the proceedings in relation to one another, as well as against the backdrop of the campaign.
Aside from the trial in Washington, Trump is also facing a trial in New York City on charges related to hush money payments to a porn actress in the run-up to the 2016 election; in Florida on charges of illegally holding on to dozens of classified documents after leaving office; and in Georgia, where he stands accused in a racketeering indictment of tampering with that state’s election.
While Smith’s prosecutors have never explicitly expressed concerns about that scenario, or the one in which Trump becomes president and orders the charges dropped, they have sought to use every lever at their disposal to keep the trial on schedule.
One of their boldest moves was their request last week to the Supreme Court to bypass the appeals court and return its own speedy decision on the immunity issue. While the justices declined to take the case for now, they may have a second opportunity to consider it after the appeals court renders its decision.