Trump Claims Presidents 'Have Absolute Immunity,' But Judges Seem Skeptical

A man protests before former U.S. President Donald Trump's motorcade departs the E. Barrett Prettyman U.S. Courthouse on January 9, 2024 in Washington, D.C.

(Photo: Drew Angerer/Getty Images)

Trump Claims Presidents 'Have Absolute Immunity,' But Judges Seem Skeptical

"This would be a good time for people to start paying attention," said one watchdog group.

A panel from the U.S. Court of Appeals for the District of Columbia Circuit appeared skeptical on Tuesday as former President Donald Trump's legal team argued that he is immune from criminal charges related to trying to overturn his 2020 electoral loss.

Trump wasn't required to attend oral arguments before the three judges in D.C. but the Republican front-runner to face Democratic President Joe Biden in the November election left the campaign trail to do so, and spoke to reporters after the hearing.

Even though U.S. Attorney General Merrick Garland chose Jack Smith as a special counsel for Trump-related federal probes after the Republican announced his 2024 campaign, and Biden has vowed not to interfere or influence the process in any way, the ex-president still claims the cases against him are politically motivated.

"I think they feel this is the way they're going to try and win," Trump said Tuesday, warning of "bedlam in the country."

Echoing some remarks on social media Monday, when he threatened to weaponize the U.S. Department of Justice against Biden if elected, Trump called efforts to prosecute him "an opening of Pandora's box."

Trump also repeatedly claimed that presidents "have absolute immunity" and, while leaving the press conference, declined to address a reporter's question about whether he would tell his supporters "no violence."

Those remarks came after Trump was uncharacteristically quiet in the courtroom, where Smith was joined by aides including James Pearce.

"Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system."

When U.S. Judge Karen Henderson, an appointee of former Republican President George H.W. Bush, raised the concern that a ruling in the immunity battle could open the "floodgates" for probes against ex-presidents, Pearce said that he did not expect "a sea change of vindictive tit-for-tat prosecutions in the future," according toThe Associated Press.

"Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system," the prosecutor added. "And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren't some sort of mechanism by which to reach that criminally."

Henderson also notably said of Trump during the hearing, "I think it's paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law."

The panel's other two members are Biden appointees: Judges Michelle Childs and Florence Pan.

At one point, Pan asked Trump's attorney, John Sauer: "Could a president order SEAL Team 6 to assassinate a political rival? That's an official act, an order to SEAL Team 6."

Sauer responded, "He would have to be and would speedily be impeached and convicted before the criminal prosecution."

The judge continued, "But if he weren't, there would be no criminal prosecution, no criminal liability for that?"

While the attorney attempted to respond with claims about "what the founders were concerned about," the judge interrupted:

Pan: "I asked you a 'yes' or 'no' question. Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution?"

Sauer: "If he were impeached and convicted first..."

Pan: "So your answer is 'no'?"

Sauer: "My answer is: qualified yes. There is a political process that would have to occur under our Constitution, which would require impeachment and conviction by the Senate."

After Trump's "Big Lie" culminated in the January 6, 2021 insurrection at the U.S. Capitol while Congress was trying to certify the 2020 election results, the Republican was impeached a historic second time but then acquitted by the GOP-controlled Senate.

In addition to facing charges related to 2020 election interference in one of the two federal cases led by Smith, Trump has been indicted in a similar case in Georgia. His legal team on Monday sought the dismissal of that case, also claiming presidential immunity.

Along with the four criminal cases, Trump is engaged in legal battles over whether inciting an insurrection constitutionally disqualifies him from holding office again. Still, among GOP candidates, he continues to lead in the polls by big margins, which his lawyer highlighted in court.

As Politico reported Tuesday:

While most of Sauer's arguments seemed aimed at the judges, his presentation was also peppered with political fodder directed at audiences outside the courtroom.

He described Trump as President Joe Biden's "number one political opponent" and "greatest political threat." In one hypothetical, Sauer said denying immunity to Trump would make it possible for Biden to be prosecuted in federal court in Texas after leaving office for failing to secure the border with Mexico.

During his rebuttal argument near the end of the hearing, Sauer declared that Trump was "leading in every poll." That's a point Trump also emphasized at a post-hearing press conference at a nearby hotel.

After speaking with reporters, Trump headed for his plane and sent an email to supporters, writing: "Now that I've boarded Trump Force One, I want to give you an update on my day in court... While I will keep fighting in court to win this rigged case against me, I care more about winning the battle in the court of public opinion. And I am confident that WE are winning that war."

Tuesday's hearing came after U.S. District Judge Tanya Chutkan—an appointee of former President Barack Obama who is set to preside over the trial scheduled for March—rejected Trump's immunity claim last month, writing that "whatever immunities a sitting president may enjoy... that position does not confer a lifelong 'get-out-of-jail-free' pass."

Law Dork's Chris Geidner noted Tuesday that "the panel is expected to reach its decision in short order, given the expedited timeline on which they took the appeal. Sauer, however, asked that the mandate—which would send the case back to Chutkan—be stayed if the court rules against Trump so that Trump can seek further review, both from the full D.C. Circuit and the U.S. Supreme Court."

The Supreme Court—which last month declined Smith's request that it skip the appellate court and swiftly weigh in on the immunity fight—has a right-wing supermajority that includes three Trump appointees and Justice Clarence Thomas, whose wife was part of the scheme to obstruct certification of the 2020 election results.

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