Lawyers for former U.S. President Donald Trump and the Justice Department sparred sharply Tuesday in a Washington courtroom over whether he is immune from prosecution on charges that he illegally tried to upend his 2020 reelection loss even as he tries to reclaim the White House in the 2024 election in November.
The three U.S. appellate court judges hearing the case issued no immediate ruling. But as Trump watched in the courtroom, they appeared skeptical of claims by his lawyer, John Sauer, that Trump could not be prosecuted criminally unless he first was impeached for wrongdoing by the House of Representatives and then convicted by the Senate.
Speaking to reporters after the hearing, Trump warned that there would be “bedlam” in the country if he is prosecuted.
“A president has to have immunity. And the other thing is, I did nothing wrong,” he said. “Eventually we win.”
Just before Trump’s presidential term ended three years ago, the House impeached him for inciting the riot of his supporters at the U.S. Capitol as Congress met on January 6, 2021, to certify that Trump had lost reelection to Democrat Joe Biden.
But after Trump left office, the Senate acquitted him, although numerous senators said they only voted against conviction because Trump’s term had already ended.
Sauer argued that if the prosecution of Trump is allowed to go forward, future presidents would face an array of allegations for their actions while in office brought by political opponents, and “would have to look over their shoulders all the time” to think whether they might face criminal prosecution.
But Judge Karen LeCraft Henderson, a Republican appointee to the appellate bench, joined two Democratic colleagues hearing the Trump case in questioning Sauer’s legal arguments. At one point, Henderson called it “paradoxical to say that [Trump’s] constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.”
Trump has claimed he was carrying out presidential duties, not acting as a candidate trying to stay in office for another four years, as he contended fraudulent election rules and vote-counting irregularities made it an unfair election. Dozens of courts ruled against Trump’s election-fraud claims in the immediate aftermath of the 2020 election, and no credible election irregularities have been uncovered in the intervening three years.
Justice Department lawyer James Pearce, on the team of special counsel Jack Smith that is prosecuting Trump, told the appellate court panel, “The president is not above the law. A former president enjoys no immunity.”
Pearce accused Trump of “using the levers of power” to undermine the 2020 election results.
Tuesday’s hearing starkly showed the duality of the 77-year-old Trump’s current political life: This past weekend, he was rallying supporters in the farm state of Iowa and days later sitting in a stately federal courtroom, blocks from the U.S. Capitol and the White House.
Trump holds a commanding lead for the 2024 Republican presidential nomination, even as he faces an unprecedented 91 charges across four criminal indictments. If convicted of any of the charges, he could face years in prison.
While Trump would be required to appear daily at any criminal trials that are scheduled this year, he voluntarily elected to attend the appellate court hearing, an apparent attempt to highlight his allegation that Biden and Smith are engaged in a political vendetta to keep him from reclaiming the White House in January 2025.
Smith has charged Trump with illegally scheming to overturn the vote in various ways, including unsuccessfully imploring his vice president, Mike Pence, to refuse to uphold the Biden victory as in the Electoral College vote count.
In addition, Trump held White House discussions calling for the names of fake Trump-supporting electors to replace those legitimately supporting Biden, who narrowly won several key political battleground states in the 2020 election.
In the United States, presidents are not elected by the national popular vote, which Biden won by 7 million votes in 2020. Rather, U.S. presidents and their vice-presidential running mates are elected through balloting in 50 state-by-state elections, with the most populous states holding the most electoral votes in the Electoral College.
Special counsel Smith is arguing that no one is above the law and immune from prosecution — not even a former president like Trump, the first-ever U.S. leader charged with criminal offenses. U.S. Judge Tanya Chutkan, who is presiding over the election fraud case, agreed with the prosecutor, ruling that Trump is not entitled to a “get-out-of-jail-free pass.”
Trump appealed her no-immunity ruling. The U.S. Supreme Court rejected Smith’s bid to fast-track consideration of the issue — the legally untested question of whether a former president can be prosecuted for acts committed in the White House — and sent it back to the appellate court in Washington.
Henderson, named to the bench by former Republican President George H.W. Bush, and judges Michelle Childs and Florence Pan, both Biden appointees, are hearing the case.
Trump’s election fraud case in Washington is set to start March 4. Whether an appellate court ruling, and the almost certain appeal to the Supreme Court by the losing side, can be heard and decided quickly enough to allow the trial to start in less than two months is uncertain at best. Trump is trying to delay trials in all his cases until after the November election, and could, if reelected, order his attorney general to drop the two federal indictments against him.
In a legal brief, Smith’s lawyers argued, "Immunity from criminal prosecution would be particularly dangerous where, as here, the former President is alleged to have engaged in criminal conduct aimed at overturning the results of a Presidential election to remain in office beyond the allotted term."
"A President who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardize both the Presidency itself and the very foundations of our democratic system of governance," they added.
Trump has denied all wrongdoing in the four criminal cases.
Former presidents enjoy broad immunity from lawsuits for actions taken as part of their official White House duties. But courts have never addressed whether that protection extends to criminal prosecution, as no former president before Trump has ever been indicted.
With the nearly certain appeal from the losing side in the eventual appellate court ruling, the Supreme Court will play a key role in the 2024 election.
The high court has already decided to hear Trump’s appeal of a Colorado Supreme Court decision to keep him off the Republican primary election ballot in that state, ruling that his direct involvement in an insurrection on January 6, 2021 — when he directed supporters to go to the Capitol and “fight like hell” to block certification of the Electoral College vote count — makes him ineligible.
The Supreme Court has also agreed to review the case of a police officer charged with obstructing an official proceeding of Congress — the certification of Biden’s Electoral College victory — that also could affect Trump. The policeman contends that prosecutors wrongly used a corporate fraud statute usually reserved for people who tamper with documents and evidence.
Prosecutors have already charged more than 300 other Capitol rioters, forming the basis of two charges against Trump in the Washington election fraud case.
The court will hear the policeman’s case in its current term and could announce its ruling sometime in June, well after the scheduled March 4 start of the Washington election fraud case.
Also at issue in the cases against Trump: his claim that he can’t be prosecuted for any role in the January 6 rioting because the House of Representatives impeached him for his actions before his presidential term ended, although the Senate later acquitted him in early 2021 after he had left office.
Trump broadly contends that he can’t be prosecuted criminally now in connection with the January 6 mayhem because the Senate has already cleared him in a political proceeding.
The Supreme Court includes three justices appointed by Trump, but in earlier 2020 election-related cases, it has ruled against the former president.
Smith, the Justice Department prosecutor, has also accused Trump of mishandling classified U.S. national security documents by hoarding them at his Mar-a-Lago oceanside estate in the southern state of Florida after he left the White House.
A state prosecutor in the southern state of Georgia has accused him of 2020 election fraud in that state, and a New York prosecutor has accused him of falsifying business records at his family’s real estate conglomerate to hide hush money payments to an adult film star ahead of his successful 2016 run for the presidency.
