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Trump hearing: Judges skeptical of ex-president's absolute immunity claim

Former U.S. President and Republican presidential candidate Donald Trump attends a campaign event, in Clinton, Iowa, U.S., January 6, 2024.
Cheney Orr | Reuters

Attorneys for Donald Trump and the Justice Department special counsel argued Tuesday over whether the former president is immune from prosecution for official acts, including those alleged in the special counsel's criminal indictment.

Trump flew in from Florida Monday night to attend the arguments in person, although he was not legally required to do so.

A panel of three federal appellate judges heard the oral arguments in the U.S. Court of Appeals for the District of Columba Circuit.

Trump's attorney, John Sauer, tried to convince the judges that unless a president has been convicted by the Senate in a formal impeachment vote, he cannot be criminally prosecuted for actions he took while in office.

The judges appeared skeptical of this line of reasoning.

"You're saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival" with impunity, said Judge Florence Pan, who was appointed by President Joe Biden.

"I think it's paradoxical to say that [Trump's] constitutional duty to 'take care that the laws be faithfully executed' allows him to violate criminal law," said Judge Karen LeCraft Henderson, quoting from the Constitution. LeCraft Henderson was appointed by Republican President George H.W. Bush.

The outcome of the arguments will have major implications, not only for Trump's legal battles — and his 2024 presidential bid — but the power of the presidency itself.

Trump: 'You can't have a president without immunity'

Former President Donald Trump's attorney John Lauro, speaks to the media before Trump, at a Washington hotel, Tuesday, Jan. 9, 2024, after Trump attended a federal appeals court hearing at the federal courthouse in Washington.
Susan Walsh | AP
Former President Donald Trump's attorney John Lauro, speaks to the media before Trump, at a Washington hotel, Tuesday, Jan. 9, 2024, after Trump attended a federal appeals court hearing at the federal courthouse in Washington.

After leaving the federal courthouse, Trump defended his view that presidents should have unlimited immunity from criminal prosecution for anything they did while in office.

"You can't have a president without immunity," Trump said.

Presidents already enjoy broad legal immunity from lawsuits related to official acts they take while performing their presidential duties.

Trump, however, wants courts to rule that this immunity extends beyond the president's time in office, and extends beyond just official acts, to shield him forever from prosecution for anything he did during the time he was president.

Federal prosecutors argue that the actions Trump took while trying to overturn the 2020 election results were not official duties, and therefore are not protected by presidential immunity.

Instead, Trump was serving his own interests as a candidate who had lost an election -- not the nation's interests as a president.

Trump disagreed. "I'm working for the country, and I worked on very hard on voter fraud, because we have to have free elections," he said.

Trump also echoed his attorneys' argument that allowing former presidents to be criminally charged for laws they violated while in office would open a "Pandora's box," and usher in an era of vindictive political prosecutions.

Kevin Breuninger

Trump slams 'unfair' prosecution, veers into false election conspiracies

Former President Donald Trump speaks to the media at a Washington hotel, Tuesday, Jan. 9, 2024, after attending a hearing before the D.C. Circuit Court of Appeals at the federal courthouse in Washington.
Susan Walsh | AP
Former President Donald Trump speaks to the media at a Washington hotel, Tuesday, Jan. 9, 2024, after attending a hearing before the D.C. Circuit Court of Appeals at the federal courthouse in Washington.

Following his appeals court hearing, Trump spoke to the news media from a familiar spot: The building that was once home to the Trump International Hotel, now a Waldorf Astoria.

Trump accused the Justice Department of a politically motivated prosecution, and he repeated debunked claims of widespread election fraud in 2020.

"I think it's very unfair" when a "political opponent is prosecuted," he said.

Trump falsely claimed that he and his team had found "voter fraud" in late 2020 that was "determinative."

"We worked on that, that's what I was doing," he said.

Smith's four-count federal indictment accuses Trump of conspiring to use "knowingly false" claims of election fraud to try and overturn valid election results.

Kevin Breuninger

First Trump courtroom sketch released

This artist sketch depicts former President Donald Trump, seated right, listening as his attorney D. John Sauer, standing, speaks before the D.C. Circuit Court of Appeals at the federal courthouse, Tuesday, Jan. 9, 2024 in Washington.
Dana Verkouteren | AP
This artist sketch depicts former President Donald Trump, seated right, listening as his attorney D. John Sauer, standing, speaks before the D.C. Circuit Court of Appeals at the federal courthouse, Tuesday, Jan. 9, 2024 in Washington.

Cameras are not permitted inside hearings at the U.S. Court of Appeals for the District of Columbia Circuit, so court artist sketches like this one are the only images the public will see of Trump and his attorney before the three judge panel.

— Christina Wilkie

Trump visibly agitated during DOJ arguments against presidential immunity

Former U.S. President Donald Trump appears in the courtroom with his lawyers for his civil fraud trial at New York State Supreme Court on Oct. 3, 2023.
Seth Wenig | Getty Images
Former U.S. President Donald Trump appears in the courtroom with his lawyers for his civil fraud trial at New York State Supreme Court on Oct. 3, 2023.

Trump became noticeably flustered when the Justice Department's lawyer argued that he did not have immunity from prosecution for official acts he took as president, according to NBC News.

Trump was quiet during his own lawyer's arguments. But several times while DOJ lawyer James Pearce was speaking, Trump abruptly became anxious and upset.

Trump also passed notes to his lawyer, written in Sharpie, while Pearce was arguing before the judges.

When his attorney, Dean John Sauer, noted that Trump was ahead in public opinion polls for the 2024 presidential election, Trump enthusiastically nodded in agreement.

But he shook his head when Pearce rebutted the idea that prosecuting Trump would open up the door to "vindictive, tit for tat" prosecutions of future presidents.

- Dan Mangan

Trump co-defendant Walt Nauta attends appeals hearing

Former President Donald Trump drives a golf cart accompanied by aide Walt Nauta prior to the start of day three of the LIV Golf Invitational - Bedminster at Trump National Golf Club on August 13, 2023 in Bedminster, New Jersey. 
Mike Stobe | Getty Images
Former President Donald Trump drives a golf cart accompanied by aide Walt Nauta prior to the start of day three of the LIV Golf Invitational - Bedminster at Trump National Golf Club on August 13, 2023 in Bedminster, New Jersey. 

Trump's valet Walt Nauta, who is a co-defendant with the president in another criminal case, attended Tuesday's appeals court argument.

Nauta sat with his own defense lawyer, Stanley Woodward. Nauta is charged with Trump in Florida federal court for their allegedly hiding hundreds of classified national security documents that Trump took with him when he left the White House.

Special Counsel Jack Smith is leading Trump's prosecutions in both the D.C. election case and the Florida case.

- Dan Mangan

Appeals court hearing adjourns

The appeals court adjourned at 10:46 a.m. ET, following a brief rebuttal from Trump's lawyer. The oral arguments lasted for about 106 minutes.

Kevin Breuninger

Trump lawyer warns 'floodgates will be opened' if court rejects his immunity claim

WASHINGTON, DC - JULY 2: D. John Sauer, Special Assistant to the Louisiana Attorney General listens during a hearing with the House JudiciarySubcommittee on the Weaponization of the Federal Government on Capitol Hill on July 20, 2023 in Washington, DC. Members of the committee held the hearing to discuss instances of the U.S. government's alleged censoring of citizens, political figures and journalists. (Photo by Anna Moneymaker/Getty Images)
Anna Moneymaker | Getty Images News | Getty Images
WASHINGTON, DC - JULY 2: D. John Sauer, Special Assistant to the Louisiana Attorney General listens during a hearing with the House JudiciarySubcommittee on the Weaponization of the Federal Government on Capitol Hill on July 20, 2023 in Washington, DC. Members of the committee held the hearing to discuss instances of the U.S. government's alleged censoring of citizens, political figures and journalists. (Photo by Anna Moneymaker/Getty Images)

Trump's lawyer fired back at the Justice Department, which dismissed the idea that rejecting Trump's immunity claims would open the door to a wave of prosecutions of future presidents.

"The floodgates will be opened," the attorney, Dean John Sauer, told the appeals court.

Trump is being prosecuted by his "chief political opponent," the very administration he is "seeking to replace," Sauer noted.

Ruling that Trump is not immune from prosecution would unleash "cycles of recrimination that will shake our republic for the future," he said.

Kevin Breuninger

DOJ lawyer ends his first round of arguments

The Department of Justice lawyer arguing for special counsel Jack Smith concluded his primary arguments.

James Pearce, the lawyer, took much less time than Trump's lawyer Dean John Sauer did to make his arguments.

Sauer has begun his rebuttal to Pearce.

- Dan Mangan

Absolute immunity for Trump would usher in 'an extraordinarily frightening future,' says special counsel lawyer

Special counsel lawyer James Pearce balked at the argument from Trump's lawyer that a president cannot be prosecuted for any official acts — even if, say, he orders the assassination of his political rival.

Protesters stands outside the E. Barrett Prettyman US Courthouse in Washington, DC, on January 9, 2023, during a hearing on immunity for former US President Donald Trump.
Roberto Schmidt | AFP | Getty Images
Protesters stands outside the E. Barrett Prettyman US Courthouse in Washington, DC, on January 9, 2023, during a hearing on immunity for former US President Donald Trump.

"What kind of world are we living in?" asked Pearce, if a president can order Seal Team Six to kill a political rival with impunity, as long as he was acquitted by the Senate in an impeachment, or he resigned before the impeachment started?

"I think that is an extraordinarily frightening future," Pearce said. He urged the appeals judges to heavily consider that implication when ruling on the immunity question.

Kevin Breuninger

DOJ lawyer brushes aside concerns about opening a 'floodgate' of presidential prosecutions

A government attorney dismissed the idea that if the appeals court were to rule that Trump is not immune from criminal charges, it would open a floodgate of future prosecutions of other presidents.

The lawyer, James Pearce, was asked by one of the appeals panel judges how the panel could write an opinion that avoids this outcome.

Pearce said the fact that Trump is charged in this case does not necessarily mean there will be a "vindictive tit for tat" in the future.

Pearce noted that past independent and special prosecutors investigated presidents, including Ronald Reagan and Bill Clinton, in probes that had the potential for criminal charges.

- Dan Mangan

Trump 'is not above the law,' federal prosecutor tells court

Former U.S. President and Republican presidential candidate Donald Trump campaigns in Newton, Iowa, U.S., January 6, 2024. 
Sergio Flores | Reuters
Former U.S. President and Republican presidential candidate Donald Trump campaigns in Newton, Iowa, U.S., January 6, 2024. 

Federal prosecutor James Pearce is arguing that although the president has a "unique constitutional role," he is "not above the law."

Moreover, a former president has no immunity from criminal prosecution, Pearce says.

Pearce cautions against judges recognizing what would be a "novel" form of immunity in this case, where a former president is accused of illegally conspiring to overturn the results of an election.

Kevin Breuninger

Trump lawyer wraps first round of arguments; judges skeptical of immunity claims

Tom Williams | CQ-Roll Call, Inc | Getty Images
D. John Sauer, Special Assistant Attorney General at the Louisiana Department of Justice, listens as he testifies during the "Weaponization of the Federal Government" hearing on Capitol Hill in Washington, DC, on July 20, 2023. 

Trump's lawyer Dean John Sauer concluded his first round of arguments under sharp questioning from a skeptical three-judge panel.

Sauer said the framers of the U.S. Constitution were "deeply concerned" about the potential for the "shattering consequences of subjecting our chief executives in an endless cycle to prosecution once they leave office."

"They were deeply concerned that the nation would devolve into" political factions," Sauer.

Sauer also reiterated his request that, if the three-judge panel rules against Trump, the court stay its order so Trump has time to request a rehearing from the full appeals court circuit, or to ask the Supreme Court to hear the case.

- Dan Mangan

Trump lawyer says case is about 'official acts,' which are immune from prosecution

Trump's lawyer is arguing that the special counsel's prosecution is based on "official acts" that Trump took while he was trying to overturn his presidential election loss, and this fact bars him from being criminally charged.

"There's five classes of conduct that are alleged, many of which is obviously official conduct," Dean John Sauer said.

He pointed to the indictment's description of how Trump tried to install a political ally as attorney general in the final month of his presidency; his use of his Twitter account to promote claims of election fraud, and meetings he held with members of Congress.

- Dan Mangan

Even a president who orders military to 'assassinate a political rival' cannot be prosecuted unless convicted by Senate impeachment first, Trump lawyer argues

Under the doctrine of absolute presidential immunity that Trump's lawyer is arguing, a U.S. president could not be prosecuted for any official act, unless he or she were impeached and convicted by Congress first.

Republican presidential candidate and former U.S. President Donald Trump takes the stage for a campaign rally in Derry, New Hampshire, October 23, 2023.
Amanda Sabga | Reuters
Republican presidential candidate and former U.S. President Donald Trump takes the stage for a campaign rally in Derry, New Hampshire, October 23, 2023.

Appeals court judges are testing just how absolute that doctrine is. One judge asked the lawyer, Dean John Sauer, if his view of immunity would mean that a president could sell pardons or military secrets, or even order Seal Team Six to assassinate a political rival, without risk of criminal prosecution.

The attorney replied, yes, a president would have to be impeached and convicted by the Senate before they could be criminally charged.

So by extension, this means that if the Senate impeached, but did not reach the two-thirds vote threshold needed to convict, this hypothetical president could not be prosecuted after leaving office.

Trump was impeached twice, and in both cases the Senate fell short of the 67 votes needed to convict him.

Kevin Breuninger

Prosecuting a president for official acts opens 'Pandora's Box,' Trump lawyer says

Trump's lawyer opened his arguments on the merits of the immunity issue by saying "to authorize the prosecution of a president for his official acts would open a Pandora's Box from which this nation may never recover."

Jim Watson | AFP | Getty Images
D. John Sauer, Special Assistant Attorney General at the Louisiana Department of Justice, listens as he testifies during the "Weaponization of the Federal Government" hearing on Capitol Hill in Washington, DC, on July 20, 2023. 

"Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses?" the lawyer, Dean John Sauer, said.

"Could President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting US citizens located abroad?" Sauer asked.

- Dan Mangan

Oral arguments begin at appeals cort

Oral arguments have begun in the appeals court case on Trump's bid for presidential immunity from prosecution.

Arguments are expected to last several hours.

- Dan Mangan

Trump motorcade arrives at courthouse

Former U.S. President Donald Trump's motorcade arrives to the E. Barrett Prettyman U.S. Courthouse on January 9, 2024 in Washington, DC.
Samuel Corum | Getty Images
Former U.S. President Donald Trump's motorcade arrives to the E. Barrett Prettyman U.S. Courthouse on January 9, 2024 in Washington, DC.

Trump's motorcade has arrived at the D.C. federal courthouse for the appeals arguments.

Kevin Breuninger

Trump is back in DC court for the first time in months

FILE - Former President Donald Trump arrives to board his plane at Ronald Reagan Washington National Airport, Aug. 3, 2023.
Alex Brandon | AP
FILE - Former President Donald Trump arrives to board his plane at Ronald Reagan Washington National Airport, Aug. 3, 2023.

Trump's attendance at Tuesday's oral arguments marks his first court appearance in Washington, D.C., since August, when he pleaded not guilty to the charges in Smith's indictment.

A federal grand jury charged Trump with four criminal counts in the case: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.

After his arraignment, Trump immediately departed the city — but not before tearing into President Joe Biden and decrying the "filth and decay" of the nation's capital.

Kevin Breuninger

Trump en route to D.C. courthouse

A line outside federal court in Washington, DC, US, on Tuesday, Jan. 9, 2024. Donald Trump's lawyers will spar with federal prosecutors Tuesday in a high-stakes court battle to determine if he is immune from charges of trying to overturn the 2020 election because he was president at the time.
Amanda Andrade-Rhoades | Bloomberg | Getty Images
A line outside federal court in Washington, DC, US, on Tuesday, Jan. 9, 2024. Donald Trump's lawyers will spar with federal prosecutors Tuesday in a high-stakes court battle to determine if he is immune from charges of trying to overturn the 2020 election because he was president at the time.

Trump has departed his golf club in Sterling, Virginia, and is en route to the E. Barrett Prettyman Courthouse in Washington, D.C.

The drive should take less than an hour. Sterling is near Dulles International Airport.

Kevin Breuninger

Former Scalia clerk will argue case for Trump

Supreme Court Justice Antonin Scalia
Getty Images
Supreme Court Justice Antonin Scalia

A former law clerk for the late Supreme Court Justice Antonin Scalia will argue on behalf of Trump before the appeals court judges.

The lawyer, Dean John Sauer, also served as Missouri's solicitor general. In that job, he represented the state government in cases that rose to the level of top supreme courts or appeals courts.

Department of Justice lawyer James Pearce will argue for special counsel Smith.

- Dan Mangan

Trump's choice to attend court draws attention away from GOP rivals in Iowa

Trump is not required to attend Tuesday's oral arguments, but he is choosing to do so less than one week before the first-in-the-nation Iowa Republican caucuses.

Former U.S. President and Republican presidential candidate Donald Trump campaigns in Newton, Iowa, U.S., January 6, 2024. 
Sergio Flores | Reuters
Former U.S. President and Republican presidential candidate Donald Trump campaigns in Newton, Iowa, U.S., January 6, 2024. 

He is also expected to be in court in Manhattan later this week for closing arguments in a civil fraud trial against him, his business and his family members.

Trump's court appearances traditionally draw massive news media and public attention to him and his legal battles. This week, they have the added benefit for Trump of drawing attention away from his rivals for the Republican nomination.

"Every time they file an indictment, we go way up in the polls. We need one more indictment to close out this election," Trump told supporters at a party event in Alabama, NBC News reported.

Kevin Breuninger

Biden appointed two of three appeals court judges hearing Trump's case

Combination showing Justice J. Michele Childs (L), and Justice Florecne Pan (R).
Getty Images
Combination showing Justice J. Michele Childs (L), and Justice Florecne Pan (R).

President Joe Biden appointed two of the appeals court judges who will decide if Trump has immunity from prosecution for his efforts to reverse his 2020 loss to Biden in the presidential election.

Judges Florence Pan and J. Michelle Childs were both nominated to the court by the current president, a Democrat.

The third judge on the three-judge appeals panel was appointed by former President George H.W. Bush, who, like Trump, was a Republican.

- Dan Mangan

Trump asserts broad view of 'absolute' presidential immunity

Trump claims in a number of his active criminal and civil cases that he is absolutely immune from liability for his official acts as president.

In the D.C. election interference case, Trump's attorneys argue that all of the allegations in Smith's indictment were official acts performed in Trump's capacity as president, so the case must be dismissed.

They also argue that Trump can be criminally charged only if he was convicted by the Senate an impeachment trial. Trump was impeached in the House for inciting the Capitol riot, but acquitted in the Senate, where a two-thirds majority vote is required to convict.

Kevin Breuninger

Trump expected to attend immunity hearing

Former U.S. President Donald Trump attends his trial in New York State Supreme Court on December 7, 2023 in New York City. 
David Dee Delgado | Getty Images
Former U.S. President Donald Trump attends his trial in New York State Supreme Court on December 7, 2023 in New York City. 

Former President Donald Trump is expected to listen in court as his legal team spars with federal prosecutors over whether the doctrine of presidential immunity shields him from criminal charges in the D.C. election case.

"Of course I was entitled, as President of the United States and Commander in Chief, to Immunity," Trump said in a Truth Social post Monday confirming his travel plans.

Trump will be seated just blocks from the U.S. Capitol, which three years earlier was overrun by a violent mob of Trump's supporters who temporarily halted the transfer of presidential power.

The Capitol riot plays a major role in Smith's four-count indictment charging Trump with crimes including conspiring to defraud the U.S. and obstruct an official proceeding. Trump has pleaded not guilty.

Kevin Breuninger

District court judge has rejected Trump's immunity claims

Courtroom sketch depicting Judge Tanya Chutkan in an exchange with Donald Trump's lawyers. 
Courtroom sketch depicting Judge Tanya Chutkan in an exchange with Donald Trump's lawyers. 

The case is at the appeals court because federal court District Judge Tanya Chutkan denied Trump's request to dismiss the criminal case on the purported grounds that he has immunity from prosecution.

When Trump appealed her decision, Chutkan paused proceedings in the case, which had been scheduled to begin trial in Washington, D.C., in March. The trial could be rescheduled if the Supreme Court takes an appeal from whoever loses at the circuit court of appeals level.

- Dan Mangan

Special counsel says Trump does not have total immunity

Special counsel Jack Smith speaks to members of the media at the US Department of Justice building in Washington, DC, on August 1, 2023.
Saul Loeb | AFP | Getty Images
Special counsel Jack Smith speaks to members of the media at the US Department of Justice building in Washington, DC, on August 1, 2023.

DOJ special counsel Smith says Trump does not have absolute immunity from prosecution in the case.

"Separation-of-powers principles, constitutional text, history, and precedent all make clear that a former President may be prosecuted for criminal acts he committed while in office," Smith told the appeals court in a filing last week.

Smith added that that includes, "most critically here, illegal acts to remain in power despite losing an election."

The special counsel is also prosecuting Trump in Florida federal court on charges related to retaining classified documents after leaving the White House and trying to hide them at his Mar-a-Lago club in Palm Beach, where he lives for half the year.

- Dan Mangan

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