Donald Trump claims presidential immunity

Donald Trump sat mostly silently in a federal courtroom in Washington, D.C. on Tuesday as the former president’s legal counsel sparred with a panel of appellate judges.

The jurists peppered attorneys for Trump and Special Counsel Jack Smith for about 75 minutes with a set of questions that could determine not just Trump’s own legal and political figure — but also how the American legal system defines the limits of the power of the presidency. 

Here are the answers to some key questions stemming from Tuesday’s historic oral arguments:

What case was under review on Tuesday?

Trump has been indicted on 91 state and federal felony charges across four jurisdictions between March and August 2023. He is the first former commander-in-chief to face criminal charges in the nation’s history.

Trials have been scheduled in 2024 for three of those cases: The federal Washington, D.C. election-subversion case; the New York state hush-money case, and the federal South Florida national security records case. Prosecutors have proposed an August 2024 trial date in the Georgia election-racketeering case, but the presiding judge has not yet approved a start date.

On Tuesday, a three-judge panel of the D.C. Circuit Court of Appeals heard oral arguments stemming from Trump’s appeal of the charges in the Washington, D.C. election-subversion case brought by Smith. Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges.

What is under dispute in Trump’s appeal?

Trump's appeal centers on a Dec. 1 order by the trial court judge, U.S. District Judge Tanya Chutkan, denying Trump's motion to dismiss the charges on the grounds that he couldn't be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."

In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.

Who are the presiding judges in Trump’s appeal? 

The D.C. Circuit Court of Appeals is a mid-level federal appellate court, which sits between the federal district court and the U.S. Supreme Court. It is widely considered the most important appellate court other than the U.S. Supreme Court due to its jurisdiction over matters occurring in the nation’s capital.

The three-judge panel presiding over Tuesday’s oral arguments consisted of Circuit Judges Karen Henderson, J. Michelle Childs and Florence Pan. Henderson was appointed by former President George H. W. Bush, while Childs and Pan were appointed by President Joe Biden.

What’s next in this case?

The three-judge appellate panel did not immediately rule on Tuesday, but is expected to issue a written order in the next week or two.

Even if the panel rules against Trump, the former president’s right to appeal is still far from exhausted. 

Under federal rules, Trump would have 30 days to seek review of an adverse ruling by the full D.C. Circuit Court of Appeals with a filing known as a petition for "en banc" consideration. If granted, the re-hearing before the full appellate court could delay the case for weeks.

If his petition for “en banc” consideration is denied, Trump could then file a petition asking the U.S. Supreme Court to take the case. If the high court declines to take up the case, Trump’s appeals would be exhausted. Legal experts estimate this would return the case to the trial court by about mid-March. 

If the U.S. Supreme Court does eventually agree to take up Trump’s appeal, legal experts estimated in an analysis published by the group Just Security, the high court might not issue a decision until mid-to-late May. 

All of those scenarios assume the D.C. Circuit issues a ruling based on the merits of the appeal. 

The appellate panel could also instead just issue a ruling on jurisdictional grounds, essentially saying that Trump had no right to appeal in the first place. Such a ruling could send the appeal on a months-long procedural path in which it would be returned to the trial court but open to possible reversal by the U.S. Supreme Court.

What’s at stake for Trump in this appeal?

Much is at stake in the appeal for the former president, whose political and legal futures are closely intertwined. Trump is scheduled to face trial in the Washington, D.C. case beginning March 4 — the day before Super Tuesday when 14 states vote in a GOP primary contest where he holds a commanding lead.

Trump’s legal team has consistently argued that it is unfair to prosecute the Republican amid his front-running primary campaign to return to the White House, and has sought to delay progress toward trial. 

Even if Trump’s appeal is ultimately not successful in contesting the charges against him, it has already had the effect of delaying movement toward trial in the case. In an order last month, Chutkan granted Trump's request to halt progress toward trial in the case until his appeal is resolved.

Trump and Smith’s prosecutors have jostled over the parameters of exactly what it means to halt progress toward trial at the district court level while the appeal progresses and whether Smith can continue to serve the former president’s legal team with discovery materials while the case is halted.

What’s at stake for the presidency?

Trump’s appeal, and the ultimate ruling of the courts, could have long-lasting impacts on the power of the presidency.

Those potential impacts were central to many of the questions the judges asked Trump’s lead appellate lawyer, D. John Sauer, on Tuesday.

“Could a president order SEAL Team Six to assassinate a political rival? That’s an official act–an order to SEAL Team Six,” Pan asked Sauer.

“He would have to be, and would speedily be, you know, impeached and convicted,” before he could be criminally prosecuted in that hypothetical scenario, Sauer replied.

Assistant Special Counsel James Pearce, appearing for the prosecution, argued that Trump’s proposed interpretation of the law would allow a president to obtain immunity for crimes by resigning before any possible Senate conviction in an impeachment trial. 

"That is an extraordinarily frightening future," Pearce said.

Dan Butcher

Dan Butcher (aka HP Pundit) is not a Democrat or Republican. He is a free thinking independent bringing you news and commentary with a dose of much needed common sense.

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