By Attorneys for Donald Trump and the Justice Department special counsel argued Tuesday over whether the former president is immune from prosecution for official acts, including those alleged in the special counsel’s criminal indictment.
Trump flew in from Florida Monday night to attend the arguments in person, although he was not legally required to do so.
A panel of three federal appellate judges heard the oral arguments in the U.S. Court of Appeals for the District of Columba Circuit.
Trump’s attorney, John Sauer, tried to convince the judges that unless a president has been convicted by the Senate in a formal impeachment vote, he cannot be criminally prosecuted for actions he took while in office.
The judges appeared skeptical of this line of reasoning.
“You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival” with impunity, said Judge Florence Pan, who was appointed by President Joe Biden.
“I think it’s paradoxical to say that [Trump’s] constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate criminal law,” said Judge Karen LeCraft Henderson, quoting from the Constitution. LeCraft Henderson was appointed by Republican President George H.W. Bush.
The outcome of the arguments will have major implications, not only for Trump’s legal battles — and his 2024 presidential bid — but the power of the presidency itself.
After leaving the federal courthouse, Trump defended his view that former presidents should have absolute immunity from criminal prosecution for their official acts in office.
“You can’t have a president without immunity,” Trump told reporters after the oral arguments ended.
Trump also echoed his attorneys’ argument that allowing former presidents to be criminally charged for laws they violated while in office would open a “Pandora’s box,” and usher in an era of vindictive political prosecutions.
— Kevin Breuninger
Following his appeals court hearing, Trump spoke to the news media from a familiar spot: The building that was once home to the Trump International Hotel, now a Waldorf Astoria.
Trump accused the Justice Department of a politically motivated prosecution, and he repeated debunked claims of widespread election fraud in 2020.
“I think it’s very unfair” when a “political opponent is prosecuted,” he said.
Trump falsely claimed that he and his team had found “voter fraud” in late 2020 that was “determinative.”
“We worked on that, that’s what I was doing,” he said.
Smith’s four-count federal indictment accuses Trump of conspiring to use “knowingly false” claims of election fraud to try and overturn valid election results.
— Kevin Breuninger
Cameras are not permitted inside hearings at the U.S. Court of Appeals for the District of Columbia Circuit, so court artist sketches like this one are the only images the public will see of Trump and his attorney before the three judge panel.
— Christina Wilkie
Trump became noticeably flustered when the Justice Department’s lawyer argued that he did not have immunity from prosecution for official acts he took as president, according to NBC News.
Trump was quiet during his own lawyer’s arguments. But several times while DOJ lawyer James Pearce was speaking, Trump abruptly became anxious and upset.
Trump also passed notes to his lawyer, written in Sharpie, while Pearce was arguing before the judges.
When his attorney, Dean John Sauer, noted that Trump was ahead in public opinion polls for the 2024 presidential election, Trump enthusiastically nodded in agreement.
But he shook his head when Pearce rebutted the idea that prosecuting Trump would open up the door to “vindictive, tit for tat” prosecutions of future presidents.
– Dan Mangan
Trump’s valet Walt Nauta, who is a co-defendant with the president in another criminal case, attended Tuesday’s appeals court argument.
Nauta sat with his own defense lawyer, Stanley Woodward. Nauta is charged with Trump in Florida federal court for their allegedly hiding hundreds of classified national security documents that Trump took with him when he left the White House.
Special Counsel Jack Smith is leading Trump’s prosecutions in both the D.C. election case and the Florida case.
– Dan Mangan
The appeals court adjourned at 10:46 a.m. ET, following a brief rebuttal from Trump’s lawyer. The oral arguments lasted for about 106 minutes.
— Kevin Breuninger
Trump’s lawyer fired back at the Justice Department, which dismissed the idea that rejecting Trump’s immunity claims would open the door to a wave of prosecutions of future presidents.
“The floodgates will be opened,” the attorney, Dean John Sauer, told the appeals court.
Trump is being prosecuted by his “chief political opponent,” the very administration he is “seeking to replace,” Sauer noted.
Ruling that Trump is not immune from prosecution would unleash “cycles of recrimination that will shake our republic for the future,” he said.
— Kevin Breuninger
The Department of Justice lawyer arguing for special counsel Jack Smith concluded his primary arguments.
James Pearce, the lawyer, took much less time than Trump’s lawyer Dean John Sauer did to make his arguments.
Sauer has begun his rebuttal to Pearce.
– Dan Mangan
Special counsel lawyer James Pearce balked at the argument from Trump’s lawyer that a president cannot be prosecuted for any official acts — even if, say, he orders the assassination of his political rival.
“What kind of world are we living in?” asked Pearce, if a president can order Seal Team Six to kill a political rival with impunity, as long as he was acquitted by the Senate in an impeachment, or he resigned before the impeachment started?
“I think that is an extraordinarily frightening future,” Pearce said. He urged the appeals judges to heavily consider that implication when ruling on the immunity question.
— Kevin Breuninger
A government attorney dismissed the idea that if the appeals court were to rule that Trump is not immune from criminal charges, it would open a floodgate of future prosecutions of other presidents.
The lawyer, James Pearce, was asked by one of the appeals panel judges how the panel could write an opinion that avoids this outcome.
Pearce said the fact that Trump is charged in this case does not necessarily mean there will be a “vindictive tit for tat” in the future.
Pearce noted that past independent and special prosecutors investigated presidents, including Ronald Reagan and Bill Clinton, in probes that had the potential for criminal charges.
– Dan Mangan
Federal prosecutor James Pearce is arguing that although the president has a “unique constitutional role,” he is “not above the law.”
Moreover, a former president has no immunity from criminal prosecution, Pearce says.
Pearce cautions against judges recognizing what would be a “novel” form of immunity in this case, where a former president is accused of illegally conspiring to overturn the results of an election.
— Kevin Breuninger
Trump’s lawyer Dean John Sauer concluded his first round of arguments under sharp questioning from a skeptical three-judge panel.
Sauer said the framers of the U.S. Constitution were “deeply concerned” about the potential for the “shattering consequences of subjecting our chief executives in an endless cycle to prosecution once they leave office.”
“They were deeply concerned that the nation would devolve into” political factions,” Sauer.
Sauer also reiterated his request that, if the three-judge panel rules against Trump, the court stay its order so Trump has time to request a rehearing from the full appeals court circuit, or to ask the Supreme Court to hear the case.
– Dan Mangan
Trump’s lawyer is arguing that the special counsel’s prosecution is based on “official acts” that Trump took while he was trying to overturn his presidential election loss, and this fact bars him from being criminally charged.
“There’s five classes of conduct that are alleged, many of which is obviously official conduct,” Dean John Sauer said.
He pointed to the indictment’s description of how Trump tried to install a political ally as attorney general in the final month of his presidency; his use of his Twitter account to promote claims of election fraud, and meetings he held with members of Congress.
– Dan Mangan
Under the doctrine of absolute presidential immunity that Trump’s lawyer is arguing, a U.S. president could not be prosecuted for any official act, unless he or she were impeached and convicted by Congress first.
Appeals court judges are testing just how absolute that doctrine is. One judge asked the lawyer, Dean John Sauer, if his view of immunity would mean that a president could sell pardons or military secrets, or even order Seal Team Six to assassinate a political rival, without risk of criminal prosecution.
The attorney replied, yes, a president would have to be impeached and convicted by the Senate before they could be criminally charged.
So by extension, this means that if the Senate impeached, but did not reach the two-thirds vote threshold needed to convict, this hypothetical president could not be prosecuted after leaving office.
Trump was impeached twice, and in both cases the Senate fell short of the 67 votes needed to convict him.
— Kevin Breuninger
Trump’s lawyer opened his arguments on the merits of the immunity issue by saying “to authorize the prosecution of a president for his official acts would open a Pandora’s Box from which this nation may never recover.”
“Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses?” the lawyer, Dean John Sauer, said.
“Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting US citizens located abroad?” Sauer asked.
– Dan Mangan
Oral arguments have begun in the appeals court case on Trump’s bid for presidential immunity from prosecution.
Arguments are expected to last several hours.
– Dan Mangan
Trump’s motorcade has arrived at the D.C. federal courthouse for the appeals arguments.
— Kevin Breuninger
Trump’s attendance at Tuesday’s oral arguments marks his first court appearance in Washington, D.C., since August, when he pleaded not guilty to the charges in Smith’s indictment.
A federal grand jury charged Trump with four criminal counts in the case: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
After his arraignment, Trump immediately departed the city — but not before tearing into President Joe Biden and decrying the “filth and decay” of the nation’s capital.
— Kevin Breuninger
Trump has departed his golf club in Sterling, Virginia, and is en route to the E. Barrett Prettyman Courthouse in Washington, D.C.
The drive should take less than an hour. Sterling is near Dulles International Airport.
— Kevin Breuninger
A former law clerk for the late Supreme Court Justice Antonin Scalia will argue on behalf of Trump before the appeals court judges.
The lawyer, Dean John Sauer, also served as Missouri’s solicitor general. In that job, he represented the state government in cases that rose to the level of top supreme courts or appeals courts.
Department of Justice lawyer James Pearce will argue for special counsel Smith.
– Dan Mangan
Trump is not required to attend Tuesday’s oral arguments, but he is choosing to do so less than one week before the first-in-the-nation Iowa Republican caucuses.
He is also expected to be in court in Manhattan later this week for closing arguments in a civil fraud trial against him, his business and his family members.
Trump’s court appearances traditionally draw massive news media and public attention to him and his legal battles. This week, they have the added benefit for Trump of drawing attention away from his rivals for the Republican nomination.
“Every time they file an indictment, we go way up in the polls. We need one more indictment to close out this election,” Trump told supporters at a party event in Alabama, NBC News reported.
— Kevin Breuninger
President Joe Biden appointed two of the appeals court judges who will decide if Trump has immunity from prosecution for his efforts to reverse his 2020 loss to Biden in the presidential election.
Judges Florence Pan and J. Michelle Childs were both nominated to the court by the current president, a Democrat.
The third judge on the three-judge appeals panel was appointed by former President George H.W. Bush, who, like Trump, was a Republican.
– Dan Mangan
Trump claims in a number of his active criminal and civil cases that he is absolutely immune from liability for his official acts as president.
In the D.C. election interference case, Trump’s attorneys argue that all of the allegations in Smith’s indictment were official acts performed in Trump’s capacity as president, so the case must be dismissed.
They also argue that Trump can be criminally charged only if he was convicted by the Senate an impeachment trial. Trump was impeached in the House for inciting the Capitol riot, but acquitted in the Senate, where a two-thirds majority vote is required to convict.
— Kevin Breuninger
Former President Donald Trump is expected to listen in court as his legal team spars with federal prosecutors over whether the doctrine of presidential immunity shields him from criminal charges in the D.C. election case.
“Of course I was entitled, as President of the United States and Commander in Chief, to Immunity,” Trump said in a Truth Social post Monday confirming his travel plans.
Trump will be seated just blocks from the U.S. Capitol, which three years earlier was overrun by a violent mob of Trump’s supporters who temporarily halted the transfer of presidential power.
The Capitol riot plays a major role in Smith’s four-count indictment charging Trump with crimes including conspiring to defraud the U.S. and obstruct an official proceeding. Trump has pleaded not guilty.
— Kevin Breuninger
The case is at the appeals court because federal court District Judge Tanya Chutkan denied Trump’s request to dismiss the criminal case on the purported grounds that he has immunity from prosecution.
When Trump appealed her decision, Chutkan paused proceedings in the case, which had been scheduled to begin trial in Washington, D.C., in March. The trial could be rescheduled if the Supreme Court takes an appeal from whoever loses at the circuit court of appeals level.
– Dan Mangan
DOJ special counsel Smith says Trump does not have absolute immunity from prosecution in the case.
“Separation-of-powers principles, constitutional text, history, and precedent all make clear that a former President may be prosecuted for criminal acts he committed while in office,” Smith told the appeals court in a filing last week.
Smith added that that includes, “most critically here, illegal acts to remain in power despite losing an election.”
The special counsel is also prosecuting Trump in Florida federal court on charges related to retaining classified documents after leaving the White House and trying to hide them at his Mar-a-Lago club in Palm Beach, where he lives for half the year.
– Dan Mangan
