A federal appeals court on Tuesday signaled it would reject Donald Trump’s attempt to throw out his indictment over his efforts to overturn the 2020 election results because it involved actions he took while president, questioning such an expansive view of executive power.
The three-judge panel at the US court of appeals for the DC circuit expressed particular skepticism with the position that he had absolute immunity from prosecution as Trump, attending in person, looked on.
“I think it is paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” the circuit judge Karen Henderson, a George HW Bush appointee, told Trump’s lawyer John Sauer during the roughly 90-minute hearing in Washington.
Last year, Trump filed a motion to dismiss the federal indictment brought by the special counsel Jack Smith, which charged the former president with seeking to reverse the 2020 election, including by advancing fake slates of electors and obstructing Congress on 6 January 2021.
The motion was rejected by the trial judge, prompting Trump to appeal to the DC circuit. The special counsel sought to bypass the potentially lengthy appeals process by asking the US supreme court to directly intervene, but the nation’s highest court returned the case to the appeals court.
Trump’s lawyer John Sauer received a cold response at the DC circuit and was even forced into conceding that presidents did not in fact have absolute immunity, after he acknowledged that presidents who were convicted in impeachment trials could be prosecuted.
The questioning came from the circuit judge Florence Pan, who noted incredulously that under Trump’s interpretation, presidents could hypothetically self-pardon, sell military secrets or order assassinations of political rivals.
Trump’s lawyer initially sought to dodge the hypotheticals and disputed whether they were examples of “official acts”. But he ultimately acknowledged with a “qualified yes” that presidents could be prosecuted if they had been convicted in a Senate impeachment trial first.
Pan then closed the trap and pointed out that Sauer’s acknowledgement meant he was conceding there was no absolute immunity for presidents.
The circuit judges also cornered Sauer with comments made by Trump’s lawyer during his second impeachment trial, who had argued that senators should acquit Trump for incitement of insurrection because no former office holder was immune from investigation and prosecution.
Trump’s lawyer said he disagreed with the characterization of those remarks. Sauer said it referred to Trump being investigated generally, and, in any event, “office holders” referred to lesser government officials, not the president himself.
The mechanics of the panel’s eventual ruling – despite their skepticism toward Sauer – remains unclear.
Trump’s position has been that all the allegations in the indictment involve official acts he undertook as president that he contends cannot be prosecuted, in contrast to private conduct which he argues can be subject to criminal charges.
Henderson questioned whether Trump had been engaging in ministerial or discretionary acts as president, but later raised the possibility of sending the case back to the trial judge to adjudicate on a charge-by-charge basis whether the acts were official or private conduct.
While the judges indicated incredulity at Trump’s legal arguments, Trump might still benefit from the hearing. His team’s goal is more about delaying the trial, scheduled to start on 4 March, rather than winning the immunity argument. They’re likely to appeal a loss at the DC circuit to the US supreme court, which could further delay the trial.
Trump has made it no secret that his strategy for all his impending cases is to delay, ideally beyond the 2024 election in November, in the hopes that winning re-election could enable him to potentially pardon himself or direct his attorney general to drop the charges.
The clear attempt to stave off the looming trial prompted the special counsel, Jack Smith, to attempt a rarely seen move to ask the US supreme court to resolve the presidential immunity question before the DC circuit had issued its own judgment.
Prosecutors made it plain in their 81-page court filing that they wanted to leapfrog the lower appeals court because they were concerned that the process – scheduling hearings and waiting for rulings – would almost certainly delay the trial date.
But when the supreme court declined to hear the matter last month, it remanded the case back to the DC circuit, directing the circuit judges Pan, Henderson and Michelle Childs to issue their own decision first. In the interim, the case against Trump remains frozen.
The decision has almost certainly slowed down Trump’s federal election interference case. Even if the DC circuit were to rule against Trump quickly, he can ask the full appeals court to rehear the case, and then has 90 days to lodge his own appeal to the supreme court.
