Former President Donald Trump confirmed that he will be in court when a federal appeals court on Tuesday considers whether to decide if he is immune from criminal prosecution relating to his federal election case.
The case, brought by special counsel Jack Smith, charged the former president with obstruction and conspiracy, with prosecutors saying that he illegally attempted to overturn the 2020 election. The former president has argued that he was acting in his capacity as president to investigate election fraud and that because he was acting in his official capacity as president, he has immunity from prosecution.
“I wasn’t campaigning, the election was long over. I was looking for voter fraud, and finding it, which is my obligation to do, and otherwise ... running our country,” he added, referring to his activity after the 2020 election.
“By weaponizing the DOJ against his Political Opponent, ME, Joe has opened a giant Pandora’s Box,” he wrote, referring to the Department of Justice.
Elaborating, he wrote that if the appeals court finds that he wasn’t immune, then President Joe Biden “doesn’t get immunity,” either. “With the Border Invasion and Afghanistan Surrender, alone, not to mention the Millions of dollars that went into his ‘pockets’ with money from foreign countries, Joe would be ripe for Indictment,” the former president added.
A District of Columbia appeals court will hear the case after the presiding judge in the election case, District Judge Tanya Chutkan, rejected his claims of immunity and refused to dismiss the case late last year. Earlier, the U.S. Supreme Court rejected an attempt by federal prosecutors to fast-track a hearing on whether he had presidential immunity, putting it in the hands of the appeals court judges for now.
Meanwhile, Judge Chutkan placed a hold on the election case until the issue is resolved, potentially pushing back deadlines—including the start of his trial this year. The judge had scheduled his trial date for March 4, or about a day before the crucial Super Tuesday nominating contests for the 2024 presidential primary election, which President Trump is currently dominating.
Arguments
In arguments before the appeals court, federal prosecutors under Mr. Smith had argued that the former president’s assertions “that to protect the institution of the Presidency, he must be cloaked with absolute immunity from criminal prosecution unless the House impeached and the Senate convicted him for the same conduct” and added that “he is wrong.”While also claiming that the former president is using the immunity-based appeal to delay the trial, Mr. Smith’s team argued that “a former President may be prosecuted for criminal acts he committed while in office—including, most critically here, illegal acts to remain in power despite losing an election.”
In mid-December, the Trump team argued in a court filing that the actions that he allegedly took “constitute quintessential presidential acts” and also fell within his “official duties.”
“During the 234 years from 1789 to 2023, no current or former president had ever been criminally prosecuted for official acts. That unbroken tradition died this year, and the historical fallout is tremendous,” the Trump filing said. “The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our nation for many decades to come and stands likely to shatter the very bedrock of our republic—the confidence of American citizens in an independent judicial system.”
They further argued that under the Constitution’s separation of powers clause, the judicial branch cannot have judgment over the president’s official acts.
“That doctrine is not controversial. It was treated as self-evident and foundational from the dawn of the Republic, and it flows directly from the exclusive vesting clause of Article II,” they continued to say. “In 1803, Chief Justice Marshall endorsed it, writing in Marbury v. Madison that a President’s official acts ‘can never be examinable by the courts.’”
At the same time, his legal team argued that his criminal election case should also be dismissed by the appeals court because the Senate did not convict him during his second impeachment trial in early 2021. If so, it would violate the Constitution’s Fifth Amendment’s clause on double jeopardy, which prohibits officials from being prosecuted twice for the same crime.
Last week, Trump attorney John Lauro filed a motion asking Judge Chutkan to sanction Mr. Smith and his team for attempting to provide evidence in the discovery process while the trial is on pause. The judge, he wrote, should hold the special counsel’s team in contempt.
