An appeals court on Tuesday hears arguments on former President Donald Trump’s claim that he is immune from prosecution over his challenge of the 2020 election. Follow here for live updates.
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Trump Says Case Opens ‘Pandora’s Box’
Trump spoke after the hearing, describing it as a “momentous day.” “We have a great argument,” he said. DOJ, he said, conceded certain points that should have ended the case. He added that the prosecution by “Biden’s DOJ” was “very unfair.”
Trump also defended himself, saying he “did nothing wrong,” and emphasized the need to combat voter fraud.
“I feel that as a president you have to have immunity, very simple,” he said.
“I think they feel this is the way they’re going to try and win and that’s not the way it goes. It will be bedlam in the country. It’s a very bad thing. It’s a very bad precedent. As we said, it’s the opening of a Pandora’s Box.”
President Trump’s attorney John Lauro offered comments as well.
“First of all, this was a momentous day. This is the first time in our nation’s history that a sitting president has decided to prosecute his major opponent who’s leading in all the polls,” he said.
Mr. Lauro added that the president was being prosecuted “for carrying out his responsibilities, doing his job as president.”
“We can’t have a country where every four years there’s a cycle of political recrimination.”
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Argument Ends
Judges Pan and Childs asked questions about the implications of Trump’s argument before Mr. Sauer asked the three-judge panel to reverse the lower court’s decision.
The hearing took roughly 75 minutes.
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Opening the ‘Floodgates’?
Mr. Sauer argued that Mr. Pearce forecasted a situation where the floodgates will be opened.
This DOJ’s prosecution was dangerous, he suggested, because it was a situation where the administration of Trump’s chief political opponent was prosecuting him.
That situation was “tailor-made,” he said, to produce “cycles of recrimination.”
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Trump Lawyer Begins Rebuttal
Mr. Sauer urged the court to focus on constitutional provisions surrounding the immunity argument. The indictment didn’t reference anything after Trump left office, he said.
According to Mr. Sauer, the “frightening” future Mr. Pearce referenced is the one America has lived under for the last 235 years.
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Main Question in Case
Judge Pan asked whether this case boil down to whether Trump was correct in interpretation of the impeachment judgment clause in Constitution?
Mr. Pearce agreed that was the main issue, saying that textual, structural, historical, and practical reasons pointed to Trump’s team being wrong.
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‘Extraordinarily Frightening’ Consequences: Pearce
Mr. Pearce referenced Judge Pan’s earlier hypothetical whether a president can use SEAL Team 6 to assassinate a political rival.
He said that and other hypotheticals represented an “extraordinarily frightening future.”
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Pearce Addresses Jurisdiction
Even if a dismissal on jurisdiction might move the case faster, which would serve the special counsel’s aims, that’s not the right analysis, Mr. Pearce said.
He asked the court to reach the merits of the case even amid doubts about jurisdiction.
Special Counsel’s Team Begins Argument
Attorney James Pearce argued that the president has a unique constitutional law but is not above the law. The president didn’t enjoy immunity after leaving office, he said.
“Separation of powers principles, constitutional text, history precedent and other immunity doctrines all points to the conclusion that a former President enjoys no immunity from criminal prosecution,” Mr. Pearce argued.
“At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognise some novel form of criminal immunity.”
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Judge Questions Scope of Presidential Immunity
Judge Florence Pan asked about balancing the need for presidential protection and public interest.
“It seems to me that there are some other article II interests here that are countervailing,” she said, noting the executive vesting clause and law enforcement.
President Trump’s position was not fully aligned with the institutional interests of the executive branch, she suggested.
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Trump Lawyer Not Challenging Smith’s Authority
Judge Childs asked about brief challenging Special Counsel Smith’s authority.
Mr. Sauer said it raises very “powerful questions” but his team hadn’t yet raised those.
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Marbury v. Madison
Judge Karen Henderson raised a distinction between ministerial and discretionary acts outlined in the 1803 Supreme Court case of Marbury v. Madison.
Mr. Sauer responded that distinction has been held for subordinate officers. Nothing in this case can be remotely described as ministerial, Sauer argued. Even if that distinction goes up to the president, it wouldn’t save the indictment, he added.
Judge Henderson responded, saying Sauer was missing what she was asking. She said it’s “paradoxical” to say Trump’s constitutional duty to execute laws allowed him to violate criminal law.
Mr. Sauer argued that everything alleged in the indictment is a presidential act.
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Trump Lawyer Argues Trump’s Conduct Was Not Private Act
Judge Michelle Childs noted that the DOJ’s indictment alleged Trump’s conduct was private rather than official acts.
Mr. Sauer, in response, argued DOJ’s legal theory was wrong and foreclosed by Supreme Court precedents
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Charging a President for Official Acts Opens ‘Pandora’s Box’: Trump Lawyer
Trump attorney Mr. Sauer argued that charging a president for his official conduct opens a “pandora’s box” for which this nation “may never recover.”
Judge Florence Pan asked whether a president could sell government secrets and avoid prosecution. She also asks whether a president can order SEAL Team Six to assassinate a political rival.
Mr. Sauer contended that a president should be impeached and convicted by Congress. The founders, he said, were worried about the abuse of the criminal process for political purposes. “That’s exactly what we see in this case,” he adds.
Mr. Sauer clarified that a president could be subject to criminal prosecution after impeachment and conviction by the Senate.
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Appeals Hearing Begins
The Appeals Court hearing commenced with Trump attorney John Sauer defending the court’s jurisdiction to hear the appeal. An amicus brief had challenged this point.
The special counsel’s office is represented by James Pearce.
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Trump Arrives
President Trump has entered courtroom at the E. Barrett Prettyman federal courthouse in Washington just before oral argument is set to comment.
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Jack Smith Arrives
Special Counsel Jack Smith has arrived at the E. Barrett Prettyman courthouse in Washington ahead of the appellate hearing in President Trump’s D.C. case.
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Trump to Attend Appeals Court Hearing on Presidential Immunity Claim
A three-judge panel is set to hear former President Donald Trump’s appeal of a lower court decision rejecting claims that some of his actions on Jan. 6, 2021, were protected by presidential immunity.
Scheduled for Jan. 9, it’s the second major appeal of the Justice Department’s (DOJ) prosecution of President Trump in D.C. The former president will make an appearance at the hearing.
President Trump confirmed on Jan. 8 that he would attend, stating, “Of course, I was entitled, as President of the United States and Commander in Chief, to Immunity. I wasn’t campaigning, the Election was long over.”
He added that he “was looking for voter fraud, and finding it, which is my obligation to do, and otherwise running running [sic] our Country.”
D.C. District Judge Tanya Chutkan, whom President Trump has accused of bias, ruled in December that he wasn’t immune from prosecution. “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” she wrote in her judgment.
President Trump appealed that decision to the U.S. Court of Appeals for the D.C. Circuit while Special Counsel Jack Smith sought the U.S. Supreme Court’s intervention to fast-track the appeal. The justices ultimately declined Mr. Smith’s request, leaving the matter in the appellate court’s hands and maintaining a stay on the district court’s proceedings.
It’s unclear when the appellate court will issue a decision but its deliberations and potential further appeal to the U.S. Supreme Court could delay the planned trial date of March 4. If the judges rule in favor of President Trump, it would undermine the DOJ’s case against him.
Regardless of the outcome, the decision will likely be appealed to the U.S. Supreme Court by either DOJ or President Trump. It comes as the Supreme Court heads toward review of a Colorado court’s ruling that he be disqualified from appearing on the state’s ballot because he allegedly engaged in an insurrection as outlined under Section Three of the Fourteenth Amendment.
The Arguments
So much of President Trump’s current legal challenges center on his response to the 2020 presidential election and, in particular, his conduct on Jan. 6, 2021. The presidential immunity debate is informative as it could prompt court opinions on how much the law shielded President Trump’s activities on that day.
The appellate court has already ruled that President Trump isn’t immune from all civil liability and allowed a lawsuit by U.S. Capitol police officers to proceed against him. The Supreme Court previously held in Nixon v. Fitzgerald that presidents were immune from civil liability for conduct that fell within the official duties of their office.
The DOJ, which is bringing criminal charges, contended that the president misconstrued the concept of presidential immunity. “The defendant, a former President, does not enjoy immunity from federal prosecution for the offenses charged in this case,” one of the special counsel’s filings read.
President Trump has argued that because the Constitution vests executive power in the president, his conduct isn’t reviewable by courts in the same way as conduct by other executive officers.
“That doctrine is not controversial. It was treated as self-evident and foundational from the dawn of the Republic, and it flows directly from the exclusive vesting clause of Article II,” a filing on behalf of President Trump states. “In 1803, Chief Justice Marshall endorsed it, writing in Marbury v. Madison that a President’s official acts ‘can never be examinable by the courts.’”
President Trump’s attorneys also argued that the DOJ’s prosecution violates the Constitution’s protection against double jeopardy because the U.S. Senate had already acquitted him in response to an article of impeachment related to Jan. 6.
Last week, Trump attorney John Lauro filed a motion asking Judge Chutkan to sanction Mr. Smith and his team for attempting to provide evidence in the discovery process while the trial is on pause. The judge, he wrote, should hold the special counsel’s team in contempt.
Several amicus briefs have been filed, including one from the group American Oversight, which argues that the appellate court lacks jurisdiction to review the denial of immunity by Judge Chutkan.
Another from former government officials, including President Trump’s former special counsel Ty Cobb, argued that the immunity claim “finds no support in the Constitution’s text or historical practice.”
Yet another brief, by two law professors and former Attorney General Edwin Meese, claims to not support either side’s position in the appeal but argues that Mr. Smith lacked “authority to conduct the underlying prosecution.”
It argues that neither U.S. statutes nor the Constitution “remotely authorized the appointment by the attorney general of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
From The Epoch Times
