Appeals court judges appear skeptical of Trump presidential immunity argument

Former President Trump points as he speaks at a microphone.
Former President Trump speaks during a rally over the weekend in Clinton, Iowa, as the state’s pivotal caucuses approach.
(Scott Olson / Getty Images)

The U.S. Court of Appeals for the District of Columbia appeared inclined during a hearing Tuesday to reject former President Trump’s claim that he is immune from prosecution on criminal charges that he plotted to overturn the results of the 2020 election.

Trump’s attorneys have argued that presidents have immunity from being prosecuted for actions taken while in office, unless they are impeached and convicted. Trump was impeached twice by the House — the second time over the Jan. 6, 2021, Capitol insurrection — but was not convicted by the Senate in either case.

Special counsel Jack Smith, who is prosecuting Trump in connection with the former president’s actions after the 2020 election, has argued that a former president does not have absolute immunity and that criminal charges can be brought once a president leaves office, particularly if the actions don’t relate to his official duties.


Trump was indicted on charges of conspiring to obstruct the official certification of Joe Biden’s election victory and seeking to defraud Americans of their rightful votes. He is charged with four federal felonies and has pleaded not guilty to all charges.

The indictment accuses Trump of scheming to enlist fake electors in battleground states won by Biden and of pressing then-Vice President Mike Pence to reject the counting of electoral votes on Jan. 6, 2021 — acts that Smith has argued fall far outside a president’s official duties. Trump has maintained that as president, he was responsible for ensuring an accurate election took place.

The three-member panel, which includes Judge Karen Henderson, an appointee of President George H.W. Bush, and Judges J. Michelle Childs and Florence Pan, both Biden appointees, noted that impeachment is typically reserved for high crimes and misdemeanors. Three presidents have been impeached — Andrew Johnson, Bill Clinton and Trump — but none were convicted by the Senate.

The judges pointed out that during Trump’s second impeachment trial, his lawyers argued there was no need to convict him because he would be subject to criminal prosecution since he was no longer in office. The judges said that may have swayed senators not to convict him.

Trump attorney John Sauer disagreed with that characterization of the argument to the Senate.

Pan questioned Sauer about whether a president could be criminally charged after leaving office in connection with several hypothetical examples of what could be considered “official acts,” including selling a pardon.


“Could a president order Seal Team 6 to assassinate a political rival?” the judge asked.

Q&A: Is Donald Trump subject to criminal charges for the Jan. 6, 2021, attack on the Capitol? A look at the legal questions surrounding his immunity claim and what it means for all future presidents.

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Sauer answered that, in such a situation, the president “would have to be speedily impeached and convicted.”

When Pan responded, “I asked you a yes or no question,” Sauer replied that his argument was no, a president could not be criminally prosecuted unless first impeached.

Assistant special counsel James Pearce responded that the idea of a president ordering the assassination of a rival, resigning before being impeached and being immune from prosecution would make for “an extraordinarily frightening future.”

“What kind of world are we living in,” Pearce asked, if a former president cannot be criminally prosecuted after he “orders his SEAL team to assassinate a political rival?”

When Judge Childs pressed Sauer on whether Trump’s alleged criminal conduct constituted a “private” or “official” act, the lawyer argued strenuously that Trump was doing official business.

Judge Henderson appeared to ask Pearce whether there was a way to deny immunity in this case without creating a risk of responsive prosecutions of former presidents.


“How do we write an opinion so that we stop the floodgates? Your predecessors ... recognized that [presidential] criminal liability would be inevitably political.”

The assistant special counsel emphasized that since President Nixon’s resignation in 1974 over the Watergate scandal, it has been understood that former presidents can be prosecuted for their actions while in office. He said the fact that there hadn’t been a flood of criminal charges against ex-presidents since then shows how serious the allegations against Trump are.

Pearce added that no president had claimed immunity from prosecution after leaving office, and said the court shouldn’t recognize immunity in the case of a president accused of crimes in an effort to stay in office after losing an election.

The panel also questioned Trump’s lawyers and the special counsel’s office about questions raised in amicus briefs submitted by outside groups, asking whether it was the right moment to decide immunity questions and whether the special counsel was properly appointed. Neither side had raised those arguments themselves, and both said they didn’t support them.

The court pushed Pearce about why he wasn’t urging the panel to accept the argument that it isn’t the right time to decide immunity, something that would mean a win for the special counsel.

“We are doing justice, and that means getting the law right,” Pearce responded.

The result of the hearing could have broad ramifications. Trump is the first former president to be charged with a crime, and there is no clear precedent on whether an ex-president may be prosecuted for actions taken while in office.


Smith is counting on a swift decision in order to proceed with the trial before the November election. Trump’s trial in this case, scheduled to begin March 4, has been paused pending the outcome of the appeal after Judge Tanya Chutkan ruled that Trump did not have immunity. It’s not clear when the panel will rule, though it has signaled that it intends to work quickly.

A decision unfavorable to Trump would likely be appealed to the Supreme Court, though there is no guarantee the justices would take up the appeal. Last month, the Supreme Court rejected Smith’s attempt to skip the appeal and send the question straight to the highest court.

Although Trump was not required to attend, he was present for oral arguments Tuesday — a possible sign his campaign had calculated that his appearance in court would be beneficial in the final days of campaigning before the Iowa caucuses on Jan. 15. Trump falsely told supporters in a fundraising email that he was being “forced” off the campaign trail to appear in court.

It is rare for a defendant to attend an oral argument at this level, and no cameras are allowed in the courthouse.

“I feel that as a president, you have to have immunity, very simple,” Trump told reporters after the hearing. “You can’t have a president without immunity ... as a president, you have to be able to do your job.”