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Appeals panel to hear oral arguments on Trump immunity

Former president in part argues his acquittal at an impeachment trial means he can’t be criminally charged

The E. Barrett Prettyman United States Courthouse in Washington, where oral arguments will be held Tuesday on an appeal in a criminal case against former President Donald Trump.
The E. Barrett Prettyman United States Courthouse in Washington, where oral arguments will be held Tuesday on an appeal in a criminal case against former President Donald Trump. (Amanda Andrade-Rhoades/For The Washington Post via Getty Images)

A federal appeals court hears arguments Tuesday about former President Donald Trump’s arguments that his presidency — and his 2021 impeachment acquittal — immunize him from prosecution in Washington for the effort to overturn the 2020 election.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit faces questions not only about how they might rule but how quickly, since any ruling on the issue is expected to be appealed to the Supreme Court and a trial is set for March.

Prosecutors in four different criminal cases have pushed for trials before the 2024 election, while the front-runner for the Republican nomination for president has sought to run out the clock.

Trump has argued for months to dismiss the case on the basis that his broad effort to overturn his 2020 election loss were “quintessential Presidential acts,” as laid out in a brief to the appellate court.

Trump also argued that “communicating his concerns” about possible fraud in the election fell within his duties as president — and he could not be tried for a crime that the Senate acquitted him of in a February 2021 impeachment trial. The briefs at the D.C. Circuit referred to it as a “double jeopardy” principle, that defendants cannot be tried for the same crime twice.

The structure of the Constitution and history “dictate that no President, current or former, may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate. Nor may a President face criminal prosecution based on conduct for which he was acquitted by the U.S. Senate,” the president’s brief said.

District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia rejected those arguments last year, writing that the president is not above the law and can face federal charges for conduct that occurred during his term.

“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.

Trump’s appeal of that decision, which will be hashed out at oral arguments Tuesday, put the case on hold and could derail the planned March jury trial. The prosecutor, special counsel John L. “Jack” Smith, already took the unusual step of asking the Supreme Court to intervene to keep that March trial date last month — but the justices declined to do so at the time.

Smith, in briefs at the D.C. Circuit, said Trump is essentially arguing the president stands above the law. Smith in a brief defended the propriety of the four-count indictment in the case.

“Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” Smith’s brief said.

Smith pushed back on Trump’s assertion that the Senate acquittal immunized him, saying in the D.C. Circuit brief that impeachment proceedings are not a criminal process and do not involve double jeopardy. Smith also pointed out that the impeachment focused on Trump’s “incitement of insurrection” on Jan. 6, not the broad effort to overturn the election that was included in the indictment.

“The mere fact that some of the conduct on which the impeachment resolution relied is related to conduct alleged in the indictment does not implicate the Double Jeopardy Clause or its principles,” the brief said.

The presidential immunity argument has been one of Trump’s main defenses since prosecutors unveiled the four-count indictment in August. The charges allege Trump led a broad push to overturn his loss in the 2020 election, including efforts to stop vote counting, putting forth false slates of presidential electors and encouraging then-Vice President Mike Pence to throw out the Electoral College votes of states Trump lost.

The immunity argument is one of many Trump has made in response to the indictment, and it’s not the first time he’s asked the D.C. Circuit to weigh in on Chutkan’s rulings. Last year a three-judge panel largely rejected his effort to overturn Chutkan’s pretrial gag order on his statements denigrating witnesses and prosecutors.

‘Speed matters’

Whether Trump succeeds in the merits of the case or not, he could find victory in crowding out the 2024 calendar, according to Ty Cobb, an attorney who previously represented Trump. At a news conference last week, Cobb called Trump’s arguments “specious” but said a real question before the D.C. Circuit is how quickly to handle the case.

“Speed matters here. You know, a Pyrrhic victory is one that takes months,” Cobb said.

Cobb said that an appeal at the D.C. Circuit and possibly the Supreme Court could force the planned March trial to slip, even if Trump loses on that appeal.

Throughout the litigation, Trump sought to delay the trial until after the 2024 election, accusing Smith and the Biden administration of “election interference” for bringing the case. Trump has made the prosecution a major part of his reelection bid and has promised retribution on his perceived enemies.

The Justice Department was investigating Trump prior to his reelection bid. Attorney General Merrick B. Garland appointed Smith after Trump announced his 2024 campaign.

Trump’s election year could soon fill up with courtroom litigation, even as he has fought to delay the Washington federal case.

Smith also serves as a prosecutor in the other federal criminal case against Trump in Florida, which was initially scheduled for a May trial on charges he retained sensitive documents after the end of his presidency. That trial timing remains up in the air, as the judge presiding over the case has pending motions about the defense team’s access to discovery and classified information.

If the trial schedule for the Washington federal prosecution slips, Trump could still end up before a jury in March.

Prosecutors in the New York state case alleging Trump falsified business records to hide hush payments as part of his 2016 presidential bid last year secured a March trial, which has not yet been rescheduled.

After Chutkan set the trial for March in a ruling last year, the judge in the New York case said he would revisit the trial schedule in February.

Prosecutors in Georgia, where Trump and more than a dozen co-defendants face state charges tied to the effort to overturn the 2020 result in the state, have proposed an Aug. 5 trial for Trump, but no date has been set.

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