WASHINGTON (CN) — With the former president in attendance, a D.C. Circuit panel heard arguments Tuesday on Donald Trump’s claim that his time as president affords him immunity from criminal prosecution, his latest attempt to thwart the federal election interference case.
The three-judge panel appeared hesitant to accept Trump’s arguments, concerned that his theory could make it virtually impossible to hold presidents accountable for crimes committed while in office.
Trump faces four criminal charges, brought by special counsel Jack Smith, related to his efforts after the 2020 election to overturn the results in his favor that led to the Jan. 6, 2021, U.S. Capitol riot. He made his first appearance in court on Tuesday since he pleaded not guilty to the charges in August 2023, sitting silently with his legal team while watching the proceedings.
Trump’s argument seeks to expand a Supreme Court precedent set in Nixon v. Fitzgerald, which held that former presidents are immune from civil liability related to actions made within the “outer perimeter” of the president’s official duties.
John Sauer, Trump’s appellate attorney of the firm James Otis, claimed in court Tuesday that immunity should apply to criminal prosecution as well. He argued that a former president can only be held criminally liable if first impeached and convicted by Congress.
The panel, made up of two Joe Biden appointees and a George H.W. Bush appointee, worried that if they were to accept Sauer’s position, they could pave the way for a future president to commit crimes while in office so long as the actions fell within the office’s duties.
U.S. Circuit Judge Florence Pan, a Biden appointee, asked Sauer whether a president who sold pardons to business associates, military secrets to a foreign adversary or ordered Seal Team 6 to assassinate a political rival could be prosecuted for those crimes.
Sauer tried to hedge his answer, but ultimately answered no, again pointing to the impeachment process as the constitutionally mandated method of accountability.
Sauer also pointed to the precedent set in the foundational 1803 Marbury v. Madison case — which held that certain presidential acts are not subject to review — reasserting the claim that Trump’s election subversion efforts were official acts in response to “election fraud.”
U.S. Circuit Judge Karen Henderson, a Bush appointee, took issue with that position, noting that the Circuit panel is required to take the charges in Smith’s indictment as fact and must view Trump’s acts as illegal.
“I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate federal laws,” Henderson said.
Trump’s primary strategy in the case has been to delay the trial, still scheduled to begin March 4, with the proceedings on pause.
The panel is expected to issue an expedited ruling in the coming weeks, which could lead Trump to appeal the case to the full D.C. Circuit or to the Supreme Court.
The high court had already rejected a request from Smith to leapfrog the D.C. Circuit.
James Pearce, representing the special counsel’s office, urged the panel to reject Trump’s appeal and clarify that a former president can be prosecuted, even for official acts.
“Never in our nation's history, until this case, has a president claimed immunity that extends beyond his time in office. He has a unique role but he is not above the law," Pearce said.
He rejected Henderson's concern that such a ruling could open a “floodgate” of litigation against former presidents for presidential acts deemed illegal — like former President Barack Obama being prosecuted for civilians killed by overseas drone strikes.
Pointing to Watergate, Pearce argued that President Gerald Ford’s pardon of former President Richard Nixon marked a widespread recognition that Nixon would have been subject to prosecution, and no such flood followed.
Special counsel Smith was also present in the courtroom, after attending the first set of oral arguments before the D.C. Circuit in November, when another three-judge panel weighed Trump’s challenge of a gag order in the case.
The issue of presidential immunity was first raised in October 2023 in a pair of motions to dismiss his Washington case, and soon after rejected by U.S. District Judge Tanya Chutkan, an Obama appointee. The dismissal motions came after Trump demanded Chutkan recuse herself as the presiding judge over claims of bias, which she soon rejected.
Chutkan's denial of Trump's motions came hours after another D.C. Circuit panel ruled that civil lawsuits against Trump related to the Capitol riot — brought by Democratic lawmakers and Capitol Police officers — could move forward.
Speaking to reporters following the proceedings at the Waldorf Astoria Hotel — formerly the Trump International Hotel — Trump asserted that the presidency afforded him absolute immunity and repeated false claims that the 2020 election was stolen.
“I did nothing wrong,” Trump said.
Follow @Ryan_Knappy
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
