Donald Trump has attended court in Washington as federal appeal judges expressed deep scepticism that the former US president is immune from prosecution on charges that he plotted to overturn the results of the 2020 election.
The panel of three judges, two of whom were appointed by US president Joe Biden, also questioned whether they had jurisdiction to consider the appeal at this point in the case, raising the prospect that Trump’s appeal could be dismissed.
During lengthy arguments, the judges repeatedly pressed Trump’s lawyer to defend claims that the former president is shielded from criminal charges for acts that he says fell within his official duties as president.
That argument was rejected last month by the lower court judge overseeing the case against Trump, and the appeal judges suggested through their questions that they were also dubious that the Founding Fathers envisioned absolute immunity for presidents after they leave office.
“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” Judge Karen LeCraft Henderson, an appointee of former president George HW Bush, said.
The outcome could carry enormous ramifications for the landmark criminal case against Trump and for the broader, and legally untested, question of whether an ex-president can be prosecuted for actions taken in the White House.
It is also likely to set the stage for further appeals before the US Supreme Court, which last month declined a request to weigh in but could get involved later.
A swift decision is crucial for special counsel Jack Smith and his team, who are eager to get the case — now paused pending the appeal — to trial before the November election, but Trump’s lawyers, in addition to seeking to get the case dismissed, are hoping to benefit from a protracted appeals process that could delay the trial well past its scheduled March 4 start date, including until potentially after the election.
Underscoring the importance to both sides, Trump, the 2024 Republican presidential primary front-runner, attended Tuesday’s arguments even though the Iowa caucuses are just a week away and despite the fact there is no requirement for defendants appear in person for such proceedings.
Making his first court appearance in Washington since his arraignment in August, Trump sat at the defence table, watching closely and occasionally taking notes and speaking with his lawyers.
His appearance and his comments afterwards underscored his broader effort to portray himself as the victim of a justice system he claims is politicised.
Though there is no evidence Mr Biden has had any influence on the case, Trump’s argument could resonate with Republican voters in Iowa as they prepare to launch the presidential nomination process.
After the hearing, Trump spoke to reporters at the Waldorf-Astoria hotel, which used to be the Trump International Hotel, calling Tuesday “a very momentous day”. He insisted he did nothing wrong and claimed he was being prosecuted for political reasons.
“A president has to have immunity,” he said.
Former presidents enjoy broad immunity from lawsuits for actions taken as part of their official White House duties, but because no former president before Trump has ever been indicted, courts have never addressed whether that protection extends to criminal prosecution.
Trump’s lawyers insist that it does, arguing that courts have no authority to scrutinise a president’s official acts and that the prosecution of their client represents a dramatic departure from more than two centuries of American history that would open the door to future politically motivated cases.
“To authorise the prosecution of a president for official acts would open a Pandora’s box from which this nation may never recover,” D John Sauer, a lawyer for Trump, said, claiming that, under the government’s theory, presidents could be prosecuted for giving Congress “false information” to enter war or for authorising drone strikes targeting US citizens abroad.
He later added: “If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision and wonder if ‘after I leave office, am I going to jail for this when my political opponents take power?’, that inevitably dampens the ability of the president.”
But the judges were sceptical about those arguments. Judge Henderson and Judge Florence Pan noted that the lawyer who represented Trump during his impeachment trial suggested he could later face criminal prosecution, telling senators at the time: “We have a judicial process in this country. We have an investigative process in this country to which no former office holder is immune.”
“It seems that many senators relied on that in voting to acquit” Trump, Judge Pan told Mr Sauer.
Judge J Michelle Childs also questioned why former president Richard Nixon would need to be granted a pardon in 1974 after the Watergate scandal if former presidents enjoy immunity from prosecution.
Mr Sauer replied that in Nixon’s case, the conduct did not involve the same kind of “official acts” Trump’s lawyers argue form the basis of his indictment.
