Special Counsel Smith is accusing former President Donald Trump of attempting to overturn President Biden’s 2020 victory. Trump has long argued that he has presidential immunity in this case and his other civil and criminal cases. The case is expected to end up at the Supreme Court regardless of how the appeals judges rule, potentially having a profound effect on the future of the U.S. presidency.
Presidents are immune from prosecution
Federal appeals court judges expressed deep skepticism that former President Trump was immune from prosecution on charges of plotting to overturn the 2020 election result. In the landmark case, Trump’s lawyers said his time in office granted him presidential immunity that protected him from criminal prosecution.
Judges probe defense
The Court of Appeals for the D.C. Circuit’s panel of three judges, Katie Henderson, J. Michelle Childs, and Florence Pan, asked probing questions concerning the implications of their decisions.
Biden appointee Judge Pan was particularly skeptical. She asked Trump’s attorney, Dean Sauer, whether he believed that a president could sell state secrets and presidential pardons or order Navy SEALs to assassinate a political rival without concern about a criminal prosecution.
Impeached, not convicted
Sauer argued that a president who is not convicted of impeachment by Congress cannot be criminally prosecuted. Trump, Sauer noted, was impeached by the House but not convicted by the Senate.
Government attorney criticizes Trump’s defense
James Pearce, the government’s attorney, criticized the idea of such a precedent as undermining Congress and potential criminal proceedings. “What kind of world are we living in if… a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment—not a criminal act,” he said.
“A president sells a pardon, resigns, or is not impeached? Not a crime,” Mr. Pearce added. “I think that is an extraordinarily frightening future.”
Opening a can of worms
Sauer contended that prosecuting presidents for their actions in office could paralyze the government, particularly the executive branch. Authorizing “the prosecution of a president for his official acts would open a Pandora’s Box from which the nation may never recover,” he said.
If it can be done to Trump…
He hypothesized that without presidential immunity, George W. Bush could be prosecuted for “giving false information to Congress” to justify the 2003 invasion of Iraq and that Barack Obama could be charged “for allegedly authorizing drone strikes targeting U.S. citizens located abroad.”
No one is above the law
Judge Karen LeCraft Henderson was dubious that presidents had absolute immunity after leaving office, saying, “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.”
A broad ruling could be disastrous
While the judges seemed open to special counsel Jack Smith’s arguments, they also expressed concerns that a broad ruling against Trump’s immunity claims could “open the floodgates” to “tit-for-tat” prosecutions.
Team Trump tries to delay case until after election
Smith and his team hope that the case, which is currently paused for appeal, gets a swift decision and moves to trial before the November election. But Trump’s legal team, in addition to seeking the case’s dismissal, is hoping to benefit from a lengthy appeals process that could delay the trial past its scheduled start date of March 4 and potentially after the election.
Immunity claim defeated previously
In December, Trump’s immunity defense was rejected by U.S. District Court Judge Tanya Chutkan, who ruled that serving as president doesn’t entitle Trump to a “lifelong ‘get-out-of-jail-free’ pass.” Smith warned in legal filings ahead of the latest hearings that failing to allow the prosecution of Trump “threatens to license presidents to commit crimes to remain in office.”
Democrat witch hunt
Speaking after the hearing in the Waldorf-Astoria hotel, which was previously a Trump hotel, the former president said his side was “doing very well” in the case and repeated claims he was facing political persecution from the Biden administration.
Legal observers saw a likely defeat for Trump in this appeal. Hans von Spakovsky, a legal analyst for the conservative think tank Heritage Foundation, said, “I think it’s fairly certain that the three-judge panel is probably going to rule against him on this particular issue.” He added that he expected Trump to appeal to the Supreme Court if he lost.
Public doesn’t buy Trump’s argument
A recent poll by CBS News suggests most Americans believe Trump should not have presidential immunity for all his actions as president.