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A federal appeals court in Washington on Tuesday appeared sceptical of Donald Trump’s argument that he is immune from criminal prosecution for allegedly attempting to overturn the 2020 presidential election while serving in the White House.
The former president attended the oral argument before the three-judge panel for the US Court of Appeals for the District of Columbia Circuit, which came just days before the beginning of the presidential primary process ahead of the 2024 election.
It is one of two court hearings Trump is expected to attend this week, along with closing arguments set for Thursday in a civil fraud trial brought by the New York attorney-general against the former president and his business empire.
The judges tackled a critical aspect of Trump’s defence against a federal criminal case brought by US Department of Justice special counsel Jack Smith alleging he tried to overturn the results of the 2020 election: namely, whether he is immune from prosecution as he was president at the time of the alleged crimes. A decision could have big implications for Trump’s case and set a precedent for future efforts to prosecute current or former presidents.
Trump argued that the law shields presidents from prosecution over acts related to their official duties. John Sauer, a lawyer representing Trump, on Tuesday pushed the appeals court to adopt a broad interpretation of presidential immunity, saying that a former president may only be prosecuted if previously impeached and convicted by the US Congress for similar crimes.
“To authorise the prosecution of a president for his official acts would open a Pandora’s box from which this nation may never recover,” Sauer said.
But the three-judge panel challenged this argument. Judge Florence Pan said Trump’s position was “not fully aligned with the institutional interest of the executive branch” and that it “weakens the executive power he’s trying to assert”.
Judge Karen LeCraft Henderson said it was “paradoxical” to argue that Trump’s “constitutional duty” to ensure that laws be followed “allows him to violate” criminal law.
James Pearce, who represented the DoJ, said that despite the president’s “unique constitutional role . . . he is not above the law”. Several legal doctrines recognise that “a former president enjoys no immunity” from prosecution, he said, and Trump’s case was “not a place to recognise some novel form of criminal immunity”.
Pearce also pushed back on the notion that a ruling against Trump could open the “floodgates”. There would be no “sea change” in “vindictive tit for tat”, he said. Siding with Trump would instead usher in an “extraordinarily frightening future”, Pearce added.
Speaking to reporters after the hearing, Trump said “a president has to have immunity”. He reiterated he had done “nothing wrong” while repeating false claims that the 2020 election was “rigged”.
US District Judge Tanya Chutkan, who is overseeing the case in the lower court, last month rejected Trump’s motion to dismiss the case. He subsequently appealed against this decision and asked that all proceedings related to the case be put on hold pending a final order, threatening to delay a previously set March trial date.
Smith, who also attended Tuesday’s hearing, last month asked the US Supreme Court to fast-track a ruling over the presidential immunity question, but the high court declined to take it up before it was heard by the intermediate appeals court. The matter is expected to land back before the top court in any case following a decision from the DC Circuit.
Trump faces four sets of criminal charges, including federal and state indictments accusing him of election interference. The DoJ has also accused him of mishandling sensitive government documents, while the Manhattan district attorney has charged him over payments to a porn actress with whom Trump allegedly had an affair. The ex-president has pleaded not guilty in all cases, which he has framed as politically motivated.
Trump is also fighting rulings in the states of Maine and Colorado that have disqualified him from the states’ presidential primary ballots for engaging in an insurrection, a claim he has denied.
The US Supreme Court last week agreed to hear the Colorado case after Trump requested it overturn the state’s decision. It will hear arguments on February 8, putting it at the centre of a legal dispute that will have fundamental implications for the 2024 polls.
Despite the legal woes, Trump’s standing in opinion polls has only improved in recent months, and he is the clear frontrunner to secure the Republican nomination.
Emily Foster is a globe-trotting journalist based in the UK. Her articles offer readers a global perspective on international events, exploring complex geopolitical issues and providing a nuanced view of the world’s most pressing challenges.
