A ruling by the court, and the timing of its decision, could be a major factor in determining when, or even whether, the former president will go to trial in the federal election case.
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Former President Donald J. Trump, accompanied by his lawyers John Lauro and John Sauer, speaking at the Waldorf Astoria hotel in Washington on Tuesday.
A three-judge panel of the federal appeals court in Washington heard arguments on Tuesday in a momentous case over former President Donald J. Trump’s claim that he is immune from criminal charges for the efforts he took to overturn the 2020 election.
A ruling by the court — and when it issues that decision — could be a major factor in determining when, or even whether, Mr. Trump will go to trial in the federal election case.
Here are some takeaways:
All three judges signaled skepticism with Trump’s position.
The judges on the Court of Appeals for the District of Columbia Circuit appeared unlikely to dismiss the charges against Mr. Trump on grounds of presidential immunity, as he has asked them to do. The two Democratic appointees on the court, Judge J. Michelle Childs and Judge Florence Y. Pan, peppered John Sauer, a lawyer for Mr. Trump, with difficult questions.
Judge Karen L. Henderson, the panel’s sole Republican appointee, seemed to reject a central part of Mr. Trump’s argument: that his efforts to overturn his loss to President 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,” Judge Henderson said.
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I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws. Now, we’re at the motion to dismiss stage. The government has charged the specific criminal laws. We have to assume they’re true.
CreditCredit…U.S. District Court via Associated Press
Still, Judge Henderson also expressed worry 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 the Federal District Court judge overseeing pretrial proceedings, Tanya S. Chutkan, for greater scrutiny of how to consider Mr. Trump’s actions.
A lawyer for Trump took a sweeping position on a hypothetical assassination.
Judge Pan asked Mr. Sauer to address a series of hypotheticals intended to test the limits of his position that presidents are absolutely immune from criminal prosecution over their officials acts, unless they have first been impeached and convicted by the Senate over the same matter.
Among them, she asked, what if a president ordered SEAL Team 6, the Navy commando unit, to assassinate a president’s political rival? Mr. Sauer said such a president would surely be impeached and convicted, but he insisted that courts would not have jurisdiction to oversee a murder trial unless that first happened.
To rule otherwise, Mr. Sauer said, would open the door to the routine prosecutions of former presidents whenever the White House changes partisan hands.
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transcript
“I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president, even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?” “With an important exception, which is that if the president is impeached and convicted by the United States Senate, in a, you know, proceeding that reflects, you know, widespread political consensus that would authorize the prosecution under the plain language of the impeachment judgment clause.” “Could a president, order SEAL Team Six to assassinate a political rival? That’s an official act, an order to SEAL Team Six.” “He would have to be and would speedily be, you know, impeached and convicted before the criminal prosecution.” “But if you weren’t, there would be no criminal prosecution, no criminal liability for that?” “Chief Justice’s opinion in Marbury against Madison and our Constitution, and the plain language of the impeachment judgment clause all clearly presuppose that what the founders were concerned about was not —” “I asked you a yes or no question. Could a president who ordered SEAL Team Six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?” “If he were impeached and convicted first.”
CreditCredit…U.S. District Court via Associated Press
A prosecutor argued that absolute immunity would be ‘frightening.’
Picking up on the hypothetical of a president who uses SEAL Team 6 to kill a rival and then escapes criminal liability by simply resigning before he could be impeached or by avoiding a conviction in the Senate, James I. Pearce, a lawyer for the special counsel Jack Smith, denounced Mr. Sauer’s argument. Such a rationale, he added, put forth an understanding of presidential immunity that was not just wrong but also a vision for “an extraordinarily frightening future.”
He also rejected the idea that allowing the case to go forward would be a “sea change” that opened the door to “vindictive tit-for-tat prosecutions in the future.” Instead, he said, the fact that Mr. Trump is the first former president ever to be charged with crimes underlined the “fundamentally unprecedented nature” of the criminal charges. He continued: “Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system.”
Mr. Pearce added, “Frankly if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”
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There are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side, to say here a president orders his SEAL Team to assassinate a political rival and resigns, for example, before an impeachment, not a criminal act. President sells a pardon, resigns or is not impeached, not a crime. I think that is extraordinarily frightening future. And that is the kind — if we’re talking about a balancing and a weighing of the interests. I think that should weigh extraordinarily heavily in the court’s consideration.
CreditCredit…U.S. District Court via Associated Press
Trump tried to engage in political theater.
In an unusual move, Mr. Trump showed up in person at the appeals court hearing, even though he was not obliged to be there. But if he was hoping to turn the appearance to his political advantage, the effort fell a little flat.
He was ushered 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 was silent, doing little more than exchanging notes with his lawyers and staring at the judges who will decide his fate.
Afterward, Mr. Trump was driven a few blocks away to the Waldorf Astoria Hotel, which once operated under his name, and denounced his prosecution on the election interference charges. He also repeated his false claims that there had been widespread fraud in the 2020 election.
“We had a very momentous day in terms of what was learned,” he told reporters. “I think it’s very unfair when a political opponent is prosecuted.”
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What’s next: The judges will rule, but the timing is not clear.
It is not clear when the appellate panel will hand down its ruling. Depending on its outcome, either Mr. Trump or prosecutors could appeal it. The case could be appealed to the full court of appeals — all 11 active judges — or directly to the Supreme Court.
Either one of those courts could decide whether to take up the matter or decline to get involved and leave the ruling by the panel in place.
How quickly all of this plays out could be nearly as important as the ultimate result. After all, the trial judge, Tanya S. Chutkan, has frozen the underlying case until the immunity issue is resolved. For now, the case is set to go in front of a jury in early March, but protracted litigation could push it back — perhaps even beyond 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 contributed video production.
Charlie Savage writes about national security and legal policy. More about Charlie Savage
Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump. More about Alan Feuer
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Source: nytimes.com
