Facing Doubt: Trump’s Immunity Argument Gets A Hard Look In Appeals Court

In a pivotal hearing on Tuesday, the U.S. Court of Appeals for the District of Columbia signaled a reluctance to uphold former President Trump’s assertion of immunity from criminal prosecution in connection with his alleged efforts to overturn the 2020 election results. Trump’s legal team contends that presidents enjoy immunity for actions taken during their tenure unless they face impeachment and conviction, a stance challenged by special counsel Jack Smith.

Smith, who is overseeing the prosecution of Trump, argues that ex-presidents do not possess absolute immunity, allowing criminal charges post-office, especially if the conduct is unrelated to official duties. Trump faces charges of conspiring to obstruct the certification of Joe Biden’s election victory and attempting to defraud American voters. The indictment accuses Trump of scheming to enlist false electors and pressuring then-Vice President Mike Pence to reject electoral votes on January 6, 2021.

The three-judge panel, featuring Judge Karen Henderson (appointed by President George H.W. Bush), Judges J. Michelle Childs, and Florence Pan (both Biden appointees), expressed reservations about Trump’s claim, pointing out that impeachment typically addresses high crimes and misdemeanors. They raised the argument made during Trump’s second impeachment trial, where his lawyers suggested criminal prosecution after leaving office, potentially influencing the Senate’s decision not to convict him.

During the hearing, Trump’s attorney, John Sauer, faced tough questioning, particularly on whether a president could be criminally charged after leaving office for actions such as ordering an assassination. Sauer maintained that impeachment should precede criminal prosecution. Assistant Special Counsel James Pearce challenged this stance, emphasizing the potential danger if a former president faced no criminal consequences for extreme actions.

The judges explored whether Trump’s alleged actions were private or official, with Sauer strongly asserting their official nature. Judge Henderson sought to strike a balance between denying immunity without risking politically motivated prosecutions of former presidents.

The court also probed questions raised in amicus briefs regarding the timing of immunity decisions and the special counsel’s appointment. The outcome of this hearing holds significant weight, as Trump is the first former president criminally charged, and the decision could set precedent on whether ex-presidents can be prosecuted for actions during their terms. A ruling unfavorable to Trump may lead to an appeal to the Supreme Court, potentially impacting the trial scheduled for March 4. Trump’s attendance at the hearing, though not mandatory, hints at the political sensitivity surrounding the case as the Iowa caucuses approach.