US appeals court judges skeptical of Trump immunity claim

WASHINGTON — A panel of US appeals court judges appeared sceptical on Tuesday of Donald Trump’s claim that as a former president he should be immune from prosecution on charges that he conspired to overturn the 2020 election.

The 77-year-old Trump attended the appeals court hearing held under tight security in a federal courthouse just blocks away from the US Capitol stormed by his supporters on January 6, 2021.

Trump, the frontrunner for the 2024 Republican presidential nomination, is scheduled to go on trial in Washington on March 4 on charges of conspiring to overturn the 2020 election won by Democrat Joe Biden.

Trump’s attorney John Sauer told a three-judge panel of the US Court of Appeals for the DC Circuit that a president can only be prosecuted for actions taken while in the White House if they have first been impeached and convicted by Congress.

“To authorise the prosecution of a president for his official acts would open a Pandora’s Box from which this nation may never recover,” Sauer said.

“The notion that criminal immunity for a president doesn’t exist is a shocking holding,” he said. “It would authorise, for example, the indictment of President Biden in the Western District of Texas after he leaves office for mismanaging the border.”

US District Judge Tanya Chutkan, who is to preside over Trump’s election interference trial, rejected his immunity claim last month and the judges who heard his appeal on Tuesday also appeared to be unconvinced by the argument.

“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 laws,” said Judge Karen Henderson, an appointee of former Republican president George H.W. Bush.

Judge Florence Pan, a Biden appointee, asked whether a president who ordered the assassination of a political rival by the Navy SEAL special forces could be criminally prosecuted even if they had not been impeached and convicted first by Congress.

“My answer is a qualified yes,” Sauer said. “There’s a political process that would have to occur.”

“So therefore he’s not completely and absolutely immune because under the procedure that you concede he can be prosecuted if there’s an impeachment and conviction by the Senate,” Pan said.

James Pearce, an attorney for the Justice Department, pushed back against the immunity claim and said the circumstances surrounding Trump’s conduct were unique.

“Never before has there been allegations that a sitting president has with private individuals and using the levers of power sought to fundamentally subvert the democratic republic and the electoral system,” Pearce said.

‘Ripe for indictment’ 

Trump was not actually required to attend the hearing.

His presence — just days before the Republican presidential primary contests kick off in Iowa — underlined his goal of making his fight against multiple criminal prosecutions part of his political campaign.

Trump, in a post on his Truth Social platform ahead of the hearing, warned that a rejection of his immunity defence could lead to indictments of Biden.

“If I don’t get Immunity, then Crooked Joe Biden doesn’t get Immunity,” Trump said, claiming his 81-year-old Democratic opponent “would be ripe for Indictment”.

Special Counsel Jack Smith, who brought the election conspiracy case against Trump, had asked the US Supreme Court to take up the immunity claim on an expedited basis, bypassing the federal court of appeals.

The special counsel has been trying to keep the March start date for Trump’s trial on track while lawyers for the former president have sought repeatedly to delay it until after the November 2024 election, widely expected to be a rematch between Trump and Biden.

The Supreme Court, which has a 6-3 conservative majority, including three justices nominated by Trump, denied Smith’s request to immediately hear the case but the appeals court decision — wherever it lands — is likely to wind up with the nation’s highest court eventually.

Last week, the Supreme Court agreed to hear Trump’s appeal of a ruling by Colorado’s highest court that would keep him off the presidential primary ballot in the western state.

Trump also faces election-related charges in Georgia — where he has also claimed immunity — and has been indicted in Florida on charges of illegally taking large quantities of top-secret documents with him on leaving the White House.

Trump was impeached by the Democratic-majority House of Representatives following the attack on the Capitol for “incitement of insurrection” but was acquitted, with Republican support, in the Senate.