Trump Lodges Appeal Citing Presidential Immunity for 2020 Election Case

Former President Donald Trump sits in the courtroom during his civil fraud trial at New York State Supreme Court in New York City on Nov. 6, 2023. Curtis Means/Pool/Getty Images

As ordered by the court, former President Donald Trump and his lawyers have filed their opening brief with a District of Columbia appeals court, asking the court to toss the DOJ’s case accusing him of plotting to overturn the 2020 election on grounds of presidential immunity.

The U.S. District Court of Appeals for the District of Columbia Circuit previously agreed to expedite the hotly contested case, giving appellants until Dec. 23 to file their opening arguments for the appeal.

The filing comes after the U.S. Supreme Court on Dec. 22 decided not to fast-track the DOJ’s case against the former president as DOJ special counsel Jack Smith sought to adhere to a March 4 trial deadline. The defense objected to any need to fast-track due process in the appeals court, arguing that the special counsel request was only necessary for timing his rival President Joe Biden’s political messaging against President Trump ahead of the Super Tuesday primary elections.

The defense also noted that the prosecution had failed to show otherwise why this March 4 trial date—which has featured prominently in the prosecution’s requests—was so important.

With the arrival of the Supreme Court’s ruling, the appeals court can now proceed with President Trump’s challenge.

The result of the appeal will decide whether the DOJ’s case against President Trump has teeth, and will also contribute to determining when the politically-charged case will be heard. If the trial goes ahead, President Trump would be required to appear in a Washington district court every weekday for two or three months, which could be a massive handicap to his presidential campaign by limiting his movements to the steps of the courthouse.

A 1982 Supreme Court opinion had established absolute immunity for presidents from civil suits. For criminal prosecution, both parties have argued that the bounds of immunity have not been defined.

The defense is asserting in its appeal, “The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a president for official acts—despite ample motive and opportunity to do so, over centuries—implies that the power does not exist,” President Trump’s attorney D. John Sauer wrote in the opening brief.

He argued that any prosecution of a former president would also require that the president have been successfully impeached and convicted by Congress for the same offenses.

“Under our system of separated powers, the judicial branch cannot sit in judgment over a president’s official acts,” he said. “That doctrine is not controversial,” representing the need to prevent a U.S. president from falling prey to false accusations lodged by political enemies, which risks undermining the whole democratic electoral process.

U.S. District Court Judge Tanya Chutkan ruled the opposite in early December, saying that a former president can face criminal prosecution for official acts committed in office.

The case will be heard by President George H.W. Bush appointee Judge Karen L. Henderson, President Biden appointee Judge Florence Y. Pan, and President Biden appointee Judge J. Michelle Childs.

The prosecution has until Dec. 30 to submit its reply filing. Oral arguments are scheduled for Jan. 9.

Judge Chutkan has stayed, or paused, the case on Dec. 13 until President Trump’s appeal is heard. In her order, she stated that the original deadlines she set were not vacated, meaning that if the case were to pick up again in the district court, she would try to stick to the original schedule and pursue a March 4 trial as closely as possible. However, it is now unlikely that will be possible given what would be a drastically shortened pretrial schedule.

If the appeals court rules against President Trump, he still has the right to within 45 days seek a rehearing from the entire bench, and 90 days to seek review from the Supreme Court on the appeals court ruling.

In the district court, President Trump had also filed three other motions to dismiss the case: on constitutional grounds, on statutory grounds, and based on “vindictive and selective prosecution.”

Catherine Yang contributed to this report.