Donald Trump witnessed a skeptical appeals court hearing Tuesday over his argument that he has presidential immunity in his federal 2020 election interference case, prompting a wide-ranging discussion about selling pardons, assassinating political rivals, and a former president’s drone strikes.
Trump made his first appearance at the E. Barrett Prettyman Federal Courthouse in Washington, D.C., since he pleaded “not guilty” to the 45-page indictment in August. The case was originally slated for a March 4 trial but has been paused while the U.S. Appeals Court for the D.C. Circuit works through the immunity dispute.
The former president has made courtroom appearances and commentary in the halls an unconventional feature of his campaign, and he spoke from his former hotel in Washington, D.C., after the Tuesday morning hearing.
At the hotel, Trump said that if presidential immunity doesn’t apply to his case, then former President Barack Obama should be charged for an alleged excessive use of drone strikes on innocent civilians, “which were bad,” Trump added.
“They were mistakes, terrible mistakes. You really can’t put a president in that position,” Trump said.
Minutes before Trump’s remarks, his lawyer D. John Sauer argued before a three-judge panel that Trump was acting under his official duties as president when he challenged the 2020 election results. Sauer said Trump should be protected from criminal prosecution because he had already been acquitted by the Senate over allegations involving similar actions.
Authorizing the prosecution of Trump would “open a Pandora’s Box from which this nation may never recover,” Sauer said. The three judges on the panel, however, appeared less convinced.
“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,” said Judge Karen Henderson, a George H.W. Bush appointee.
At one point, Judge Florence Pan, an appointee of President Joe Biden, asked if Sauer’s argument would allow a president to “order SEAL Team 6 to assassinate a political rival.”
“He would have to be and would speedily be impeached and convicted before the criminal prosecution,” Sauer responded.
“So, your answer is no?” Pan asked.
“My answer is qualified yes,” Sauer replied.
Judge Pan: Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to a criminal prosecution?
John Sauer: If he were impeached and convicted first.
Pan: So, your answer is no?
Sauer: My answer is qualified yes. pic.twitter.com/cAiunKxOwl
— CSPAN (@cspan) January 9, 2024
Trump’s defense counsel maintains that his efforts to question and challenge his 2020 election defeat were “quintessential Presidential acts” that he was entitled to pursue without the threat of indictment, such as the one he’s currently challenging, according to a brief filed to the D.C. Circuit. His lawyers argued that “communicating his concerns” about possible fraud falls within the “outer perimeter” of his duties as president, citing a 1982 Supreme Court precedent known as Harlow v. Fitzgerald.
James Pearce, an attorney for special counsel Jack Smith‘s office, argued it would be “scary” if Trump’s alleged effort to overturn the election happened again under a precedent that he nor other presidents could be charged with a crime.
“Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system,” Pearce said.
Pearce at one point asked the judges not to weigh in on the broader question of whether a president is ever entitled to some immunity shields, noting that there could be limited exceptions in certain contexts. In order to avoid a more complex decision, he asked the judges to avoid that issue altogether.
Much of the debate focused on which allegations in Smith’s indictment can be considered official presidential business rather than private conduct. Two judges raised some questions as to whether they have jurisdiction to review the case at this time because the appeal may have been premature.
However, if the judges render a decision on the merits of the arguments, their posture toward Trump’s arguments on Tuesday suggested they could likely go against the former president. That would then tee up Trump’s appeal for an en banc review by the full appeals court, or if denied that request, an appeal to the U.S. Supreme Court.
CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
The former president is appealing presiding U.S. Judge Tanya Chutkan’s Dec. 1 denial of his motion to dismiss his indictment on presidential immunity and constitutional grounds. The case is on hold, as Chutkan lacks jurisdiction over the matter while the appeals court decides whether Trump’s immunity claims can stand.
How soon Trump’s presidential immunity argument gets resolved will also help to answer when he will actually head to trial, as his team has attempted at every opportunity to delay the trial until after Election Day in November.