Arguments were heard in federal court in Washington Tuesday, where a panel of appeals judges weighed whether former President Trump can be prosecuted for his efforts to overturn the 2020 election before he left the White House.
Trump and his legal team argued he has absolute immunity because he was acting in his official capacity as president and that he can’t be prosecuted on a matters in which he was impeached by the House but acquitted by the Senate.
A 45-page indictment released in August from special counsel Jack Smith puts Trump at the center of a lawless campaign to block the transfer of power, charging him with defrauding the United States and other crimes. Trump has denied any wrongdoing.
The federal election interference case is just one of several criminal cases Trump faces in 2024, which hasn’t put much of a dent in his double-digit lead ahead of his GOP primary opponents.
Follow below for live updates from the courthouse in Washington.
The appeals court hearing Trump’s immunity defense in his federal 2020 election interference case has concluded just after 10:45 a.m. Tuesday. It lasted about an hour and 15 minutes.
Judges heard arguments from the special counsel’s office and Trump’s lawyers, picking apart the argument that Trump is immune from prosecution in the case because he was exercising his official duties.
A decision by the appeals court, which will impact whether this Trump criminal case moves forward, could come within the next few weeks.
The panel of judges questioned lawyers for the special counsel’s office and former President Trump over whether presidents can be criminally prosecuted for ordering the “assassination” of political rivals.
While questioning John Sauer, Trump’s lawyer, one judge asked whether a president could order SEAL Team Six to assassinate a political rival.
“He would have to be impeached and convicted,” Sauer replied.
James Pearce, a lawyer with special counsel Jack Smith’s office, forcefully pushed back against the notion that mechanisms to hold presidents accountable for criminal actions should be weakened.
“What kind of world are we living in … if a president orders his SEAL team to murder a political rival and then resigns or is not impeached — that is not a crime? I think that is an extraordinarily frightening future that should weigh heavily on the court’s decision,” Pearce said.
— Ella Lee
Judge Karen Henderson questioned James Pearce, a prosecutor with the special counsel’s office, over how the panel’s decision could prevent a torrent of legal matters brought against former presidents.
“How do we write an opinion that would stop the floodgates?” she asked.
Pearce argued that since Watergate, there has been “widespread societal recognition” that former presidents can be subject to criminal prosecution.
The government’s investigation into former President Trump would not mean a “seachange of vindictive prosecution” is now imminent, he said. Instead, the indictment reflects the “unprecedented nature” of the allegations against Trump, Pearce said.
— Ella Lee
James Pearce, a prosecutor with special counsel Jack Smith’s office, argued before the appeals panel that former presidents enjoy “no immunity” from criminal prosecution.
“Never in our nation’s history, until this case, has a president claimed immunity extends beyond his time in office,” Pearce said.
— Ella Lee
Judge Florence Pan pointed out that Trump’s legal team made very different arguments when he was facing his second impeachment, saying that criminal prosecution lies with the courts.
“It seems many senators relied on that,” Pan said.
Trump lawyer John Sauer said that whether a concession “may or may not have been made” at the time, it would not have any effect because the proceedings are “very different.”
Sauer later argued that the risk of criminal prosecution would have a chilling effect on presidents.
“If a president has to look over his shoulder or her shoulder every time they have to make a controversial decision and ask ‘Am I going to jail for this?’ That weakens the position.”
— Ella Lee and Rebecca Beitsch
A panel of three judges questioned Trump lawyer John Sauer over the limits of when a president can and can’t be prosecuted.
One judge questioned whether a president could order SEAL Team Six to assassinate a political rival.“He would have to be impeached and convicted,” Sauer replied.
Sauer argued that allowing presidents to be prosecuted for “official acts” could open a “Pandora’s box for which this nation may never recover.”
Tuesday’s panel comprises Circuit Judges Karen Henderson, an appointee of former President George H.W. Bush; Michelle Childs, a President Biden appointee who was previously floated as a potential Supreme Court nominee; and Florence Pan, a Biden appointee.
— Ella Lee
The hearing in federal court in Washington, D.C., began just after 9:30 a.m. after Trump’s motorcade arrived at the courthouse.
Special counsel Jack Smith has arrived in the courtroom where his team of prosecutors and lawyers for former President Trump will soon make their case before a D.C. Circuit Court of Appeals panel over whether Trump’s efforts to overturn the 2020 election are shielded from prosecution.
The special counsel’s office has argued that the “principle of accountability” for criminal acts plays as vital a role as the presidency in America’s constitutional system. Trump’s legal team says he was acting in his official capacity as president, thus making his actions immune from criminal prosecution.
The hearing could mark the third time Smith and Trump come face-to-face; Trump has not yet arrived in the courtroom.
— Ella Lee
A poll published Tuesday hours ahead of Trump’s Washington, D.C., court appearance found that the majority of Americans disagree with the former president’s argument that he should be immune from prosecution.
More than 6 in 10 participants, or 64 percent, disagreed with the argument, while about 36 percent said the former president should have immunity.
Trump’s legal team is arguing his actions leading up to the Jan. 6 riot at the Capitol and his efforts to overturn the 2020 presidential election are protected by presidential immunity. They also argue that Trump cannot be charged for actions in which he was acquitted by the Senate, a legal notion known as double jeopardy.
Read more about the poll here.
Trump’s lawyers have begun arriving for Tuesday’s oral arguments.
About two dozen members of the public — including George Conway, the husband of former Trump aide Kellyanne Conway — are in line to try to get a seat in the courtroom.
— Zach Schonfeld
Former President Trump’s immunity hearing in his federal 2020 election interference case is sandwiched between campaign stops in Iowa ahead of the first crucial presidential primary contest in the Hawkeye State on Jan. 15.
Despite his legal troubles, Trump is polling double-digits ahead of his top two primary rivals, Florida Gov. Ron DeSantis and former South Carolina Gov. Nikki Haley, in Iowa and consistently in national polls.