Trump’s immunity claim gets frosty reception at appeals court

Source: Politico | January 9, 2024 | Kyle Cheney and Josh Gerstein

With Trump looking on, a three-judge panel grilled his lawyer on his claim that he cannot be prosecuted for election subversion.

A federal appeals court panel strongly suggested Tuesday that it would reject former President Donald Trump’s claims of immunity from criminal charges related to his effort to subvert the 2020 election.

With Trump looking on, a three-judge panel expressed deep skepticism of his contention that a president could not be prosecuted — even for assassinating a rival or selling military secrets — if he were not first impeached and convicted by Congress.

“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,” said Judge Karen Henderson, a George H.W. Bush appointee.

Despite that inclination, the three judges — who also include Biden appointees Florence Pan and Michelle Childs — appeared divided during Tuesday’s oral argument over how broad a ruling to issue. Their ruling, no matter where they land, is likely to trigger further appeals to the Supreme Court for a final determination on whether Trump’s criminal trial in Washington, D.C., will take place this year.

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During Tuesday’s hearing, which lasted over an hour, the three-judge panel of the D.C. Circuit Court of Appeals seemed inclined to uphold Chutkan’s ruling. The appeals judges sounded dubious of Trump’s argument that permitting Smith’s case to proceed would trigger a “republic-shattering” cycle of recrimination in which future presidents reflexively prosecute their predecessors from opposing parties.

The judges also picked at a tension in Trump’s argument. Although Trump says courts are prohibited from ever judging a president’s official actions, he also says presidents can be prosecuted for those very actions if they’re first impeached and convicted by Congress. Pan pressed on that point, suggesting that if the panel disagreed with Trump’s view that impeachment must precede prosecution, then it must also permit Smith’s case to advance to trial.

Pan argued that dismissing the Trump prosecution would have its own set of ill effects on the republic, like weakening the enforcement of criminal laws or diminishing the Constitution’s guarantee that executive power will be vested in a duly elected president.

Trump, who was not required to attend the argument but left the campaign trail to do so, appeared largely stoic throughout the proceedings. He at times wrote some thoughts in sharpie on a legal pad that he shared with his legal team. Smith was also present, flanked by top aides Michael Dreeben, Ray Hulser and James Pearce, who argued for the prosecutors.

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