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OPINION: This article may contain commentary which reflects the author’s opinion.
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit heard arguments on Tuesday concerning former President Donald Trump’s claim of immunity from prosecution regarding the 2020 election.
Special Counsel Jack Smith filed charges against Trump in a federal court in Washington, D.C., and Trump was present at the arguments. In response to the four counts against him, Trump has entered a not guilty plea: conspiracy to defraud the United States, obstruction of an official proceeding, conspiracy to obstruct the right to vote and to have one’s vote counted, and conspiracy overall.
Because his actions in 2020 were part of his official presidential responsibilities, Trump argues that he is immune from prosecution.
All three judges hearing the case are women — Karen Henderson, nominated by President George H.W. Bush in 1990, and Michelle Childs and Florence Pan, nominated by President Joe Biden.
Trump left court and delivered remarks from the Waldorf Astoria, where he argued that his legal team’s arguments went well in court.
“I think it’s very unfair when an opponent, a political opponent, is prosecuted. They’re losing in every poll, they’re losing in almost every demographic,” Trump said about Biden.
He said that the prosecution of him is a “threat to democracy,” and added that he did “nothing wrong.”
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The outcome of the arguments will have far-reaching consequences for the historic criminal case against Trump as well as for the larger, as-yet-untested, subject of whether or not a former president can face charges for actions taken while in office.
The United States Supreme Court, which last month turned down a request to intervene but might still do so in the future, will most likely hear additional appeals soon.
The case is currently on hold pending an appeal, but special counsel Jack Smith and his team are eager to resume trial before the November election, so a quick decision is essential.
However, Trump’s legal team is aiming to do more than just have the case dismissed; they want to use an appeals process that could drag on for a long time, delaying the trial beyond its originally planned start date of March 4—possibly even until after the election.
Following his arraignment in August, he will be making his first court appearance in Washington, one of four cities in which he is facing criminal prosecutions and possible trials.
Preliminary indications suggest he may utilize the appearance to cast himself as an innocent bystander in a politically biased judicial system. As Republicans in Iowa get ready to begin the process of nominating a candidate for president, Trump’s argument may ring true with them, even though there is no proof that Joe Biden has influenced the case in any way.
Writing in a social media post, he asserted his entitlement to immunity as president and commander in chief, and continued, “I was looking for voter fraud, and finding it, which is my obligation to do, and otherwise running our Country.”
Anyone who has served as president is immune from lawsuits based on anything they did while in office. Courts have never dealt with the question of whether that immunity covers criminal prosecution before, since no president prior to Trump has ever faced indictment.
Trump’s legal team maintains that it does, claiming that the courts lack the power to review the president’s official actions and decisions and that their client’s prosecution would be a radical break with over 200 years of American tradition, paving the way for more “politically motivated” prosecutions. In a separate criminal case involving Trump in Georgia, they submitted a comparable motion on Monday.
Smith’s legal team has argued that presidents do not enjoy absolute immunity and that the indictment’s claims against Trump, such as plotting to use fake electors in states that Biden had previously won and urging Vice President Pence to reject the counting of electoral votes on January 6, 2021, are completely unrelated to the president’s official responsibilities.
“The former president’s immunity from criminal prosecution would be especially dangerous in this case because he is alleged to have engaged in criminal conduct to stay in office beyond his term by overturning the results of the presidential election,” Smith’s team wrote in a brief.
They went on to say that the Presidency and our democratic system of government would be in danger if the president tried to stay in office illegally and without fear of criminal prosecution.
If the prosecution’s interpretation of the law is correct—a president, according to Trump, could get away with bribing his way into a lucrative government contract, telling the head of the FBI to plant evidence that would incriminate a political opponent, or even selling nuclear secrets to a foreign enemy.
Although the panel has indicated its intention to work swiftly, the exact time it will rule is unclear. Last month, the judges ordered the prosecution and defense to submit briefs quickly, with Saturdays designated as the filing dates.
The case’s presiding judge, U.S. District Judge Tanya Chutkan, rejected the Trump team’s arguments on December 1 and ruled that being president does not provide a “‘get-out-of-jail-free pass.’”
To keep the case moving forward, Smith’s team wanted to bypass the appeals court and ask the Supreme Court to quickly decide in favor of the government on the immunity question, so Trump’s lawyers could appeal that decision. Without providing any justification, the justices chose not to intervene.
A larger Trump strategy involves delaying the election subversion case until after the November election. If he succeeds, he will be able to order the Justice Department to drop the charges or even seek a pardon for himself. This is why the appeal is crucial to his strategy.
Before the trial in Washington, he must contend with three additional criminal charges in federal and state courts.
His legal team has argued for Trump’s immunity by pointing to a constitutional provision against double jeopardy and the fact that this case involves the same kind of behavior that led to his impeachment by the House but his subsequent acquittal by the Senate.
Even though the charges against Smith are different from those that Trump faced during his impeachment, his legal team has stated that it is not uncommon for prosecutors to press charges against someone who has been impeached and acquitted in Congress.
