Donald Trump’s arguments that he can’t be criminally prosecuted for his efforts to overturn the 2020 election results because it involved actions he took while still president appeared unconvincing to a federal appeals court Tuesday, which repeatedly questioned such an expansive view of executive power.
The three-judge panel at the US court of appeals for the DC circuit expressed skepticism with the principal contention of Trump’s lawyer that the former president enjoyed absolute immunity from prosecution, and could only be charged if he had been convicted in an impeachment trial.
Such an interpretation of executive power would mean presidents could hypothetically self-pardon, sell military secrets or order the US Navy’s Seal Team 6 to assassinate political rivals and escape accountability simply by claiming they were official acts, suggested Florence Pan, the circuit judge.
Trump’s lawyer initially sought to dodge whether presidents could be criminally prosecuted in such scenarios, but eventually offered a “qualified yes” – though only if Trump had been impeached and convicted in the Senate first.
Karen Henderson, a George HW Bush circuit judge appointee, also seemed leery of Trump’s position. “I think it is paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” she told Sauer during her questioning.
Trump attended the court hearing in Washington. The decision that the DC circuit reaches, and how long it takes to issue a ruling, could carry profound implications for the viability of the scheduled March trial date that has been frozen pending the outcome of Trump’s appeal.
Trump appealed his federal election interference case last month after the trial judge rejected his effort to have the charges thrown out on grounds that he was afforded absolute immunity from prosecution.
The argument from Trump’s lawyers advanced a sweeping interpretation of executive authority that contended all of his actions to reverse his election defeat in 2020 fell under the “outer perimeter” of his duties as president and were therefore protected.
Trump’s motion was swiftly rejected by Tanya Chutkan, the US district judge who wrote in an opinion accompanying the ruling that neither the US constitution nor legal precedent supported such an extraordinary extension of post-presidential power.
“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” Chutkan wrote. “Former presidents enjoy no special conditions on their federal criminal liability.”
But while the judges indicated deep skepticism of Trump’s attorney’s legal arguments, Trump might still benefit from the hearing. His team’s goal is more about delaying the trial, scheduled to start on 5 March, rather than winning the immunity argument. They’re likely to appeal a loss at the circuit court to the US supreme court, which could likely delay the trial.
Trump has made it no secret that his strategy for all his impending cases is to delay, ideally beyond the 2024 election in November, in the hopes that winning re-election could enable him to potentially pardon himself or direct his attorney general to drop the charges.
The clear attempt to stave off the looming trial prompted the special counsel, Jack Smith, to attempt a rarely seen move to ask the US supreme court to resolve the presidential immunity question before the DC circuit had issued its own judgment.
Prosecutors made it plain in their 81-page court filing that they wanted to leapfrog the lower appeals court because they were concerned that the process – scheduling hearings and waiting for rulings – would almost certainly delay the trial date.
But the supreme court declined to hear the matter last month, remanding the case back to the DC circuit and having the three-judge panel of Florence Pan, Michelle Childs and Karen Henderson issue its own decision first. In the interim, the case against Trump remains frozen.
The decision has almost certainly slowed down Trump’s federal election interference case. Even if the DC circuit were to rule against Trump quickly, he can ask the full appeals court to rehear the case, and then has 90 days to lodge his own appeal to the supreme court.