by Ashley Murray, Georgia Recorder [This article first appeared in the Georgia Recorder, republished with permission]

January 9, 2024

WASHINGTON — Former President Donald Trump appeared in federal court Tuesday seeking immunity from charges that he schemed to overturn the 2020 presidential election results and knowingly fed lies to supporters who turned violent on Jan. 6, 2021.

Trump, who is leading polls in the 2024 Republican presidential primary field, watched while his attorney D. John Sauer was grilled by a panel of judges as he argued that the former president is shielded from criminal prosecution because he acted in an official capacity. Trump in a brief press conference later suggested a ruling against his immunity claim would spur “bedlam” from his supporters.

The former president arrived at the courtroom minutes before the proceedings with his team of lawyers and sat mostly expressionless, taking no notes, while Sauer answered questions from a three-judge all-female panel, according to reporters inside the courtroom. Dozens of other journalists watched a live feed from a media room for the U.S. Court of Appeals for the District of Columbia in the E. Barrett Prettyman Courthouse.

Presiding Judges Karen LeCraft Henderson, Florence Y. Pan and J. Michelle Childs fired question after question to Sauer for roughly 40 minutes as he argued that Trump’s acts leading up to and on Jan. 6 were “official” and that his eventual acquittal by the U.S. Senate protects him from double jeopardy.

Trump was impeached by the U.S. House for inciting an insurrection on Jan. 6.

The decision by the appeals judges — Henderson, appointed under President George H. W. Bush, and the others recent President Joe Biden appointees — is likely to land in the U.S. Supreme Court, where a ruling could have significant implications for presidential liability.

Under questioning, Sauer told the appeals panel that “to authorize the prosecution of a president for his official acts would open a Pandora’s box (from) which this nation may never recover.”

The judges questioned whether a president’s actions while in office, no matter the legality, would be immune from criminal prosecution.

“You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team Six to assassinate a political rival,” Pan said to Sauer.

Sauer conceded that selling military secrets “strikes me as something that might not be held to be an official act.”

Pan replied that Sauer’s concession undermines the Trump team’s argument that the government’s separation of powers guarantees the judiciary cannot hold the executive branch accountable.

“Given that you’re conceding that presidents can be criminally prosecuted under certain circumstances, doesn’t that narrow the issues before us to ‘Can a president be prosecuted without first being impeached and convicted?’” Pan said.

“Your separation of powers argument falls away, your policy arguments fall away if you concede that a president can be criminally prosecuted under some circumstances,” Pan said.

Henderson, questioning whether Trump’s actions can be defended as official acts, said, “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate (federal law).”

Government’s case

Arguing for the U.S. Department of Justice, Assistant Special Counsel James Pearce described the potential for an “awfully scary” and “frightening” future if presidents could be completely immune from criminal prosecution.

Pearce rebuffed the notion that “floodgates” would open for cases against presidents.

“This investigation doesn’t reflect that we are going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here,” Pearce said.

Trump could be seen shaking his head in disagreement at the comment, according to reporters in the room.

“If as I understood my friend on the other side is to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment, (it’s) not a criminal act. I think that’s an extraordinarily frightening future,” Pearce said during his roughly 20 minutes of questioning.

In his five-minute rebuttal, Sauer said a United States in which a president is “very, very, very seldom prosecuted because they have to be impeached and convicted first is the one we’ve lived under for 235 years. That’s not a frightening future, that’s our republic.”

Sauer said the criminal charges against Trump are now creating “a situation where we have the prosecution of the political opponent who’s leading in every poll in the presidential election next year and is being prosecuted by the administration that he’s seeking to replace.”

The three-judge panel concluded oral arguments after an hour and 15 minutes and did not indicate when judges would release a decision.

Trump calls for immunity, warns of ‘bedlam‘

In brief remarks following the hearing at the Waldorf Astoria hotel in Washington, which was a Trump-branded property until his business sold the lease in 2022, Trump said presidents should have legal immunity, proclaimed his innocence and hinted his supporters would create more unrest if he were prosecuted.

Biden was using federal prosecutions to damage his chief rival politically, Trump said.

“This is the way they’re going to try to win,” he said. “And that’s not the way it goes. There’ll be bedlam in the country. It’s a very bad thing, it’s a very bad precedent. As we’ve said, it’s the opening of a Pandora’s box. It’s a very sad thing that’s happened with this whole situation.

“When they talk about threat to democracy, that’s your real threat to democracy and I feel that as a president, you have to have immunity,” Trump added.

The remarks drew on a strategy the Trump campaign has employed for months to use the former president’s myriad legal troubles to boost his electoral standing by framing him as a victim of political persecution.

Trump suggested that he was being prosecuted for official acts related to curbing voter fraud and repeated debunked claims that the 2020 election was decided by fraudulent votes.

“I did nothing wrong, absolutely nothing wrong,” he added. “I’m working for the country.”

Trump spoke for just more than seven minutes and did not take questions.

Trump indictment

U.S. District Court Judge Tanya Chutkan in December denied Trump’s motion to dismiss his case based on presidential immunity.

U.S. Special Counsel Jack Smith asked the Supreme Court to immediately take the case, bypassing the appeals level, but the justices declined.

A federal grand jury indicted Trump in August for interfering in election results following the November 2020 presidential contest.

The indictment accuses Trump of conspiring with attorneys, a U.S. Department of Justice official and a political consultant, all unnamed, to organize fake electors for Trump from seven key states that Biden in fact won. Those states included Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania and Wisconsin.

The indictment also outlined Trump’s pressure campaign on former Vice President Mike Pence to reject electors from those states during his ceremonial role of certifying the election results on Jan. 6, 2021.

Leading up to that date, the indictment recounts, Trump knowingly fed a stream of lies to his supporters that he won the election, igniting a rally during which he spoke on Jan. 6, 2021 and culminating in a violent attack on the U.S. Capitol. The official four charges against Trump include 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.

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