Former President Donald Trump should be immune from criminal prosecution for his official acts in office, even if he were to conduct them with criminal intentions, his lawyer argued before a federal appeals court in Washington, D.C.
A three-judge panel of the court, consisting of Judges Michelle Childs, Karen LeCraft Henderson, and Florence Pan, scrutinized that argument during a Jan. 9 hearing that dealt with the sole issue of presidential immunity.
The case was brought last year by special counsel Jack Smith, alleging that President Trump conspired to criminally obstruct Congress from counting electoral votes in 2021.
Lawyers for the former president have moved to have the case dismissed on multiple grounds, including the immunity issue. After District Judge Tanya Chutkan tossed the immunity argument, they appealed to the U.S. Court of Appeals for the District of Columbia Circuit, prompting Judge Chutkan to put the proceedings on hold.
At the outset of the hearing, Judge Pan raised several hypotheticals, such as a president selling national security information, selling pardons, or even ordering special forces to assassinate a political opponent. President Trump’s lawyer, D. John Sauer, affirmed that the immunity should apply as long as those were official rather than private acts.
The only exception would be if the president was impeached and convicted by the Senate for the alleged conduct. Mr. Sauer argued that in extreme cases such as assassinating opponents, Congress would promptly do so, allowing prosecution.
Special counsel attorney James Pearce, arguing for the prosecution, rejected such reasoning, contending that former presidents do not enjoy any criminal immunity. When questioned by the judges, he acknowledged that the court may need to consider criminal immunity for former presidents in some hypothetical cases, but not in the Trump case.
“At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognize some novel form of criminal immunity,” he said.
Mr. Sauer posited that this was exactly a case in which immunity should apply. All of the alleged conduct fell within what a president should do to execute the law, he said, although prosecutors turned the actions into crimes by alleging they were done with criminal intent.
It is precisely the focus on intent that is foreclosed by case law on immunity, he suggested. Prior cases distinguished between private and official acts based on “the nature of the act itself,” he said. “It does not turn on the purpose or motive.”
Mr. Pearce suggested that the inability to prosecute former presidents for unimpeached conduct would lead to a “frightening future” where presidents commit crimes with impunity under the cloak of office. He cited Judge Pan’s hypothetical case in which a president assassinated a political rival.
The need for impeachment would also raise a separation of powers issue, as it would condition the executive’s ability to be prosecuted upon an act of Congress, he said.
“There are all sorts of reasons why of course Congress won’t act. For one, they’ve never believed it was required. And also, in certain instances, they may decide that they don’t have jurisdiction.”
Mr. Sauer opined that it was the intent of the framers to significantly hinder the prosecutions of former presidents.
“The ‘frightening future’ that [Mr. Pearce] alleges, where presidents are very, very seldom, if ever, prosecuted because they need to be impeached and convicted first, is the one we’ve lived under for the last 235 years. That’s not a frightening future. That’s our republic,” he said.
“What he’s forecasting is a situation where the floodgates will be open. We’re in a situation where we have the prosecution of the chief political opponent, who’s winning in every poll of the presidential election upcoming next year, and he’s being prosecuted by the administration that he’s seeking to replace. That is the frightening future. That is tailor-made to launch cycles of recrimination that will shake our republic for the future.”
The judges asked about some more granular legal distinctions and adjacent issues, such as the difference between “discretionary” and “ministerial” official acts, where liability would apply to the latter. Mr. Sauer said this distinction shouldn’t apply to presidents. Even if it did, he said, none of the alleged conduct could be called ministerial.
The judges also asked about the argument that Mr. Smith wasn’t properly appointed. Mr. Sauer called it a strong argument, but one the defense is not raising at the moment.
He affirmed that if the court agrees President Trump does enjoy criminal immunity for official acts, it has the discretion to send the case back to Judge Chutkan, in order to review the indictment and determine what actions should and shouldn’t qualify as official.
If rejected by the court panel, President Trump could ask for a rehearing by the full court as well as an appeal to the Supreme Court.
Aside from the immunity issue making its way through the courts, the Supreme Court recently agreed to pick up the case of a defendant charged with participation in the protest and riot at the U.S. Capitol on Jan 6, 2021. The case deals with the scope of two charges used by Mr. Smith against President Trump—obstruction of an official proceeding and conspiracy to do so. Some experts have predicted the Supreme Court will interpret the law more narrowly, rendering it inapplicable to the Jan. 6 defendants. That could also make it inapplicable to President Trump.
William Shipley, a criminal defense lawyer and former federal prosecutor who is representing some of the Jan. 6 defendants, suggested the immunity issue is likely to be decided by the Supreme Court as well.
He continued: “Pausing in the Circuit Court to allow the parties to make their arguments—which SCOTUS can then evaluate and narrow to what the 9 Justices really care about—is the correct step to take on a novel question of first impression. Better to have this ‘dress rehearsal’ in the Circuit that sets the stage for the actual argument in SCOTUS than rush to SCOTUS and not have the issues properly framed.”
Some commentators focused on the argument that unimpeached presidents could assassinate their rivals. Mr. Shipley argued that it made legal sense for President Trump’s lawyers to argue the immunity issue broadly, as it is up to prosecutors to prove President Trump’s conduct “falls outside those limits.”
“Those outer limits do not include murdering political opponents because the 5th Amendment prohibits it and it can’t be argued that unconstitutional acts fall within the outer limits.”
President Trump, the GOP frontrunner in the upcoming presidential election, is facing four criminal indictments, including two by Mr. Smith, one in New York, and one in Georgia.
Mr. Smith, as well as the Georgia prosecutor, Fulton County District Attorney Fani Willis, have taken steps to hasten the proceedings, in an apparent bid to reach a judgment before Election Day. Procedural issues have been jeopardizing that ambition.
