A federal appeals court will weigh arguments Tuesday about Donald Trump‘s claims that his presidency and his 2021 impeachment acquittal should immunize him from prosecution over an alleged attempt to overturn the 2020 election.
A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments about Trump’s claim that he has immunity from prosecution. Trump, who is seeking to remain the top contender in the Republican primary as the Iowa caucuses approach next week, is taking time off the campaign trail to attend the oral arguments on Tuesday in the nation’s capital.
The appearance marks Trump’s first return to the E. Barrett Prettyman U.S. Courthouse since he pleaded not guilty to the four-count indictment in August. It also stands as a show of force for his public polling dominance over the GOP field, as Trump has consistently avoided orthodox campaigning events since his arrests, favoring the courtrooms as his 2024 backdrop.
On the eve of the appeals court hearing, Trump said Monday he would indict President Joe Biden if the court doesn’t rule his way.
“If I don’t get Immunity, then Crooked Joe Biden doesn’t get Immunity, and with the Border Invasion and Afghanistan Surrender, alone, not to mention the Millions of dollars that went into his ‘pockets’ with money from foreign countries, Joe would be ripe for Indictment,” Trump wrote on Truth Social.
Tuesday’s oral arguments will be livestreamed from the appeals court’s YouTube channel beginning at 9:30 a.m. ET.
Here’s what to expect from the key hearing in Trump’s legal saga:
The four-count indictment
A federal grand jury in Washington, D.C., indicted Trump in August on four counts related to conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction, and conspiracy against the right to vote and have one’s vote counted.
U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama who is presiding over the case, sided with special counsel Jack Smith’s request for the trial to take place on March 4, which would likely allow a verdict before the 2024 election, though Trump’s appeal throws the current timeline into jeopardy.
What stage is the case currently in?
Trump is appealing 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.
Smith made a shocking move last month to ask the Supreme Court to leapfrog the appeals court and decide the issue immediately. The justices rejected that request, allowing the appeals court schedule to proceed.
Trump’s legal arguments
Trump’s attorneys maintain that his efforts to question and challenge his 2020 election defeat were “quintessential Presidential acts” that he was entitled to do without the threat of indictment, such as the one he’s currently challenging, according to a brief filed to the D.C. Circuit. He argues 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.
Trump attorneys cling to the constitutional argument that “no President, current or former, may be criminally prosecuted for his official acts unless he is first impeached and convicted by the Senate. Nor may a President face criminal prosecution based on conduct for which he was acquitted by the U.S. Senate,” according to the brief.
Trump’s counsel further said that only three presidents have been impeached in the nation’s history, and none of them have been convicted. “Stripping away this check would radically diminish the President’s independence and protection from ‘new fangled and artificial treasons … by which violent factions, the natural offspring of free governments, have usually wreaked their alternate malignity on each other,'” lawyers said in Trump’s brief, quoting from James Madison’s Federalist Papers.
When Chutkan rejected Trump’s claims at the district court level, she stated, “The United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.”
The special counsel’s office contends that the mere fact that former President Richard Nixon sought and received a pardon after resigning from office after the Watergate scandal “reflects the consensus view that a former president is subject to prosecution after leaving office,” arguing there are “no historical materials” supporting Trump’s claim, according to a Dec. 30 brief.
The three judges in question
A three-judge panel, comprising two appointees of Biden and one appointee of former President George H.W. Bush, will listen to arguments from attorneys for Trump and Smith in the 45-minute hearing Tuesday morning, which could go much longer as judges weigh the high-stakes immunity question.
The senior member is Judge Karen Henderson, who was appointed by Bush in 1990.
The two Biden appointees are Judge Michelle Childs, who was considered for the Supreme Court opening that eventually went to Justice Ketanji Brown Jackson, and Judge Florence Pan, who was named to the appeals court after Jackson ascended to the highest court.
Considerations from outside parties
Judges instructed attorneys for Trump and the federal government to address points raised by third parties who also filed amicus briefs in the case. Such briefs include one from former Attorney General Edwin Meese III, who argued boldly that Smith’s appointment as special counsel was unlawful. Another argument from the liberal group American Oversight contends that the appeals court lacks jurisdiction to hear the appeal and that the case should be returned to Chutkan’s court so the trial can move forward.
Who will be arguing on Trump’s behalf?
D. John Sauer, a former Missouri solicitor general and clerk to Supreme Court Justice Antonin Scalia, will be arguing the case on Trump’s behalf. He argued before the same court when Trump appealed a gag order imposed on him by Chutkan.
Sauer is a veteran attorney who has argued numerous high court cases, including his work on a successful lawsuit as solicitor general against the Biden administration’s COVID-19 vaccine mandate.
The special counsel’s team will be represented by James Pearce, who has spent the bulk of his legal career in public service. Pearce has also worked closely with Smith on several other Jan. 6-related legal matters, including actions brought against Big Tech companies in the pursuit of online records.
Immunity appeal could be poised for Supreme Court
The appeals court could rule quickly over Trump’s dispute. While it’s unclear how it will decide at this point, many legal experts say Trump likely faces an uphill battle to see his charges dismissed.
The Supreme Court is not required to take up the case and could leave the appeals court ruling in place. If Trump loses, he will likely file a petition to the Supreme Court, and a decision on when the trial could move forward would be clear soon after that move.
In Georgia, Trump is facing 13 charges related to a sweeping racketeering indictment that is similar to Smith’s Washington, D.C., case, although it accuses Trump of conspiring to subvert the Fulton County election in the Peach State.
Trump made the same argument Monday in the Georgia case brought by District Attorney Fani Willis.
“The indictment is barred by presidential immunity and should be dismissed with prejudice,” Trump’s Fulton County Superior Court filing Monday said, arguing, “The power to indict a current or former President for official acts does not exist.”
Trump, who has maintained his innocence since his first indictment in April over alleged hush money payments made to a porn star, has sought to have all of his trials pushed until after the election as prosecutors have moved to hold the trials ahead of Election Day.
