2:14 pm ET, January 9, 2024
Key takeaways from the appeals court hearing on Trump's immunity claims — and what's at stake
From CNN's Jeremy Herb, Marshall Cohen and Devan Cole
A federal appellate panel Tuesday expressed deep skepticism Donald Trump's argument that he cannot be prosecuted for attempting to sway the 2020 election raises serious implications of the absolute presidential immunity.
Trump's lawyers have argued that his federal election tampering charges should be dismissed because he is immune from prosecution. But three judges on the U.S. Court of Appeals for the District of Columbia Circuit questioned whether the immunity doctrine, championed by Trump's lawyers, would allow presidents to sell pardons or assassinate political opponents.
Special counsel Jack Smith's team argued that the president is not above the law, warned that allowing prosecutions against the president would open a “floodgate” and said it would be “very scary” if there was no criminal mechanism to prevent future presidential impeachment. Vote and remain in power.
However, the justices also wondered whether they had the authority to decide the question of presidential immunity in this case. Trump is set to go on trial in March for his role in trying to rig the 2020 election. He is innocent. Trump chose to attend the trial — a reminder of the role his four criminal indictments will play in his presidential campaign.
The appeals court decision could lead to a battle over presidential immunity in the Supreme Court. The judges did not set a deadline, but given the circumstances they are unlikely to take much longer.
Justices worried about scope and impact of Trump's immunity argument: Circuit Court judges asked Trump attorney John Sawyer pointed questions about his claim that Trump is immune because his actions after losing the 2020 election were part of his presidential duties. The justices also challenged his claim that Trump could only face criminal charges if he was first impeached and convicted by Congress for the same conduct. DC Circuit Court Judge Karen Henderson, an appointee of President George HW Bush, appeared skeptical that Trump was acting within his official duties. “I think it's ironic to say that his constitutional duty to see to it that the laws are faithfully executed allows him to violate the criminal law,” Henderson said. Some judges pushed back on Trump's immunity claims, highlighting the dangerous path it could lead to, where future presidents could boldly break the law without repercussions.
Key debate on whether Trump's impeachment prevents impeachment: Sauer, Trump's lawyer, argued that a president can only be tried after a criminal indictment and conviction for alleged actions in the Senate. He was acquitted by the Senate in February 2021. Judge Florence Bann, a President Joe Biden appointee, questioned Sawyer on his contention that any criminal prosecution requires congressional impeachment and conviction. Presidents have a path to face litigation. “If you concede that presidents can be prosecuted under certain circumstances, your separation of powers argument falls apart, and the issues before us are narrowed down. Are you correct in your interpretation of the impeachment clause?” Pan said.