A federal appeals court in Washington sounded unlikely Tuesday to side with former President Donald Trump’s push to jettison federal charges tied to his effort to overturn the 2020 election.
All three judges on the panel of the U.S. Court of Appeals for the District of Columbia Circuit sharply questioned Trump’s effort to dismiss the case based on an argument that presidents are immune from prosecution for actions they took as president.
The panel is expected to rule soon on the issue, a decision that appears likely to be appealed to the Supreme Court next. How the court process plays out could determine whether Trump faces trial during the 2024 election season on federal charges that he sought to reverse the 2020 presidential election results.
Trump’s argument Tuesday rested heavily on his acquittal at the 2021 Senate impeachment trial following the Jan. 6, 2021, attack on the Capitol. Trump attorney D. John Sauer told the panel that presidents are only subject to prosecution once they have been impeached by the House and convicted by the Senate.
Judge Florence Pan and other members of the panel questioned what kind of behavior that would allow in presidents.
“You’re saying a president could sell pardons, could sell military secrets or order Seal Team Six to assassinate a political rival,” Pan said.
Pan pointed out that during the 2021 impeachment trial, Trump conceded that former presidents could be subject to criminal prosecution, a point mentioned by several senators who voted to acquit Trump.
“He was president at the time and his position was that no former office holder is immune,” Pan said. “And, in fact, the argument was, there’s no need to vote for impeachment, because we have this backstop, which is criminal prosecution. And it seems that many senators relied on that voting to acquit.”
Sauer responded that prosecutors could bring the cases about a president ordering the assassination of a rival, but he would likely make the same arguments about immunity.
“If there is no impeachment ever, or no conviction, the actions are immune,” Sauer said.
Sauer argued that allowing the prosecution of Trump, who faces a four-count indictment in Washington D.C. tied to his alleged effort to overturn the election, was “tailor made to launch cycles of recrimination that would shake our republic.”
Both Pan and Judge J. Michelle Childs pushed Sauer to explain why they should hear the appeal at all, rather than dismiss it to hear after a conviction, which is the normal course for criminal appeals. The case is set for trial in March but has been put on hold during this appeal.
Trump, who was at the courthouse Tuesday, has incorporated his defense against the charges into his broader reelection bid that includes vows of recrimination on his opponents.
Prior to the arguments, Trump put out a fundraising email saying that he would journey to the “belly of the beast” and falsely stating that the voluntary court hearing had taken him off the campaign trail.
In a post on his social media website Truth Social, Trump said “if I don’t get Immunity then Crooked Joe Biden doesn’t get Immunity,” before implying he would pursue criminal charges against Biden.
A grand jury probe into Trump’s conduct surrounding the 2020 election existed before Trump launched his reelection campaign in 2022. After the announcement Attorney General Merrick B. Garland appointed Special Counsel John L. “Jack” Smith to supervise the prosecution.
During the oral arguments Tuesday, Judge Karen Henderson pushed DOJ counsel James Pearce about how the court could write an opinion that “does not open the floodgates” for former presidents to face prosecution.
Pearce said the case against Trump “reflects the fundamentally unprecedented nature of the allegations here” rather than any erosion of the presidency. He also pointed out that, contrary to Congress, the courts should assume that prosecutors and grand juries act without political motives.
Pearce argued that Trump’s position would allow presidents to act with impunity if they are able to avoid impeachment.
“It would mean if a former president engages in assassination, selling pardons, these kinds of things, and is not impeached and convicted, there is no accountability for that individual. That is frightening,” Pearce said.
Pearce argued for the panel to uphold the December decision by District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia that held former presidents have no immunity from criminal charges.
Trump’s appeal of that decision effectively put the entire case on hold and put a scheduled March trial date into question. Smith sought to keep that date on track, to the point of unsuccessfully asking the Supreme Court to intervene in the case in December.
Sauer told the D.C. Circuit panel Tuesday that Trump could seek Supreme Court review of whatever the court decides.
Trump has argued for presidential immunity in multiple cases so far, including federal civil suits seeking damages from the Jan. 6 2021, attack on the Capitol and in a Georgia state case alleging Trump committed crimes while attempting to overturn his 2020 loss in the state.
In a filing Monday, Trump indicated he may appeal a December D.C. Circuit decision on presidential civil immunity to the Supreme Court.