An appeals court is set to consider Trump's immunity claim in the 2020 election case

Washington – A three-judge panel in Washington is set to consider Tuesday former President Donald Trump's claim that he is immune from federal criminal prosecution.

Oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit will focus on Trump's legal theory — the allegation that he engaged in a conspiracy to subvert the results of the 2020 presidential election — that it should be dismissed. When he was president.

A lower court has already ruled that Trump Absolutely no immunity The outcome of the appeal could derail allegations brought by special counsel Jack Smith about Trump's actions surrounding the 2020 presidential election.

The case is being heard by Judges Karen Lecroft Henderson, Michelle Childs and Florence Pan. Last week, two sources familiar with Trump's plans told CBS News that he is expected to attend the debates in DC, where the former president confirmed his plans. Social media post Early Monday morning, he said he was “looking for voter fraud” after the election. Smith argued that despite losing at the ballot box, he engaged in illegal activities to stay in power.

Trump's attendance is not mandatory, although defendants have the right to be present at the proceedings.

Trump's immunity claim

Former President Donald Trump speaks at a campaign event on January 6, 2024 in Newton, Iowa.

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In Written summaries The former president's legal team wrote ahead of Tuesday's hearing Four charges Against Trump, he is Innocent, are “unlawful and unconstitutional” because they target “official acts” Trump has taken as president. Because the conduct described in Smith's indictment occurred while Trump was in office, Trump's lawyers argued that the Constitution dictates that he can only be prosecuted if he is first convicted by the Senate following a criminal investigation.

“Before any lawyer can ask a court to rule on the president's conduct, Congress must have authorized it by impeaching and impeaching the president. That did not happen here, so President Trump has absolute immunity,” Trump's lawyers wrote. Pointing out that the former president was impeached by the House in 2021, he has been since then Acquitted by the Senate.

However, the Special Adviser, He denied the claims A filing of his own. Trump's legal doctrine “threatens to give presidents a license to commit crimes,” he warned.

Prosecutors argued that while Trump enjoys some level of immunity for official acts carried out in his role as president, the indictment “contains substantial allegations of conspiracy to alter election results that fall outside the outer bounds of official presidential responsibilities.” Smith wears too argued Trump has been charged with different crimes than the ones he faced during his impeachment trial, so his criminal investigation should not impose any limitations on past congressional actions.

House He fired Trump In an article he was accused of “inciting sedition”. He faces four separate cases for his conduct surrounding the 2020 election Obstruction of official proceedings and a conspiracy to defraud the United States.

Arguments scheduled for Tuesday come after U.S. District Court Judge Tanya Sudkan Rejected Trump's initial bid The case should be dismissed based on the presidential exception. The judge found that the presidency “does not confer a life-time license to walk out of prison,” and that Trump “could be subject to federal investigation, indictment, prosecution, conviction and sentence. In office.”

Sutgen has set up Trump Criminal trial for March 4But the case Currently on hold The question of immunity is considered by the High Courts.

In an effort to expedite proceedings, Smith's team The Supreme Court has asked An appellate court must grant an unusual request to take a case before it can consider it. But in an unsigned order, the High Court last month He decided not to take the main case ahead of schedule. The decision does not prevent the losing party — Trump or Smith — from seeking a Supreme Court review once the DC Circuit rules.

Jurisdiction Question

Among the issues that may be argued before the DC Circuit is whether the court has jurisdiction over the appeal.

A Friend of the Court Brief In a Dec. 29 filing, American Oversight, a liberal watchdog group, argued that Trump could not ask an appeals court to reconsider Sutkan's order. The panel urged the DC Circuit to reject the appeal and remand the case to the district court for trial “without further delay.”

A view of the E. Barrett Prettyman Courthouse in Washington, DC on Friday, October 11, 2019.

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quoting unanimously 1989 Supreme Court Judgment The panel, written by Justice Antonin Scalia, said that an order denying immunity in a criminal case can be appealed against immunity “only on the basis of an express statutory or constitutional guarantee that the trial will not occur.” The high court has identified only two constitutional safeguards against interrogation that meet this standard, the US watchdog argued: the double jeopardy clause and the speech or debate clause, which shields members of Congress from being questioned about their legislative actions.

“Mr. Trump asserts immunity under structural constitutional principles and the implied negative implication of the Impeachment Clause. No claim rests on any express textual guarantee against investigation,” the group's lawyers said in their filing with the D.C. Circuit.

They said Trump, if convicted of any of the four charges he faces, could return to the D.C. Circuit and press his presidential immunity claim after conviction.

In an unsigned order last week, the justices instructed attorneys for both sides to be prepared to respond to “friends of the court presentations on unique issues raised by the court” during oral arguments.

It's unclear how quickly the D.C. Circuit will rule on the immunity issue, though it has been quick to set deadlines for filings and arguments. If the appeals court issues a decision on whether Trump is immune from federal prosecution, it could be appealed to the Supreme Court.

Finn Gomez and Olivia Rinaldi contributed to this report.

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