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Appeals court hearing in former U.S. President Trump's 2020 election subversion case is held at District Court in Washington

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Three judges on the <a href="https://www.washingtonpost.com/dc-md-va/2024/01/09/trump-immunity-appeals-court-arguments/" target=_blank>U.S. Court of Appeals for the D.C. Circuit heard unprecedented arguments</a> Tuesday morning on whether the U.S. Constitution makes former presidents immune from criminal prosecution.

A U.S. District Court judge has already rejected Trump’s argument, which ultimately is likely to be weighed by the U.S. Supreme Court.

Federal prosecutors working for special counsel Jack Smith have <a href="https://www.washingtonpost.com/national-security/2023/08/01/trump-indictment-jan-6-2020-election/" target=_blank>charged former president Donald Trump with four counts</a> related to conspiring to obstruct the 2020 election results.

Trump’s team has argued that the federal election obstruction case in D.C. should be dismissed, saying he was president at the time of the actions laid out in the indictment. His lawyers have also argued that prosecuting him would constitute double jeopardy, since he was already impeached and acquitted by Congress for his actions related to the <a href="https://www.washingtonpost.com/january-6-capitol-riot/" target="_blank" class="contextual_link">Jan. 6</a>, 2021, attack on the U.S. Capitol.

Here are some key takeaways from the hearing:

1. The judges seemed skeptical that presidential immunity extends as far as Trump’s lawyers claim it does.

Trump attorney D. John Sauer argued that presidential immunity means that a president cannot be prosecuted for any actions that fall under his presidential duties — unless the House first votes to impeach him and the Senate then convicts him.

Judge Florence Y. Pan, an appointee of <a href="https://www.washingtonpost.com/elections/candidates/joe-biden-2024/" target="_blank" class="contextual_link">President Biden</a>, asked Sauer if a president could be criminally prosecuted if he ordered SEAL Team 6 to assassinate a political rival. Such a scenario — ordering the military to do something — would fall under presidential duties. But having a rival murdered would also be a clear violation of the law.

Sauer said the Justice Department could only charge the president for giving such an order if the Senate votes to convict him first. Pan also asked him whether a president could sell pardons or nuclear secrets without being prosecuted. Sauer responded similarly.

Pan seemed skeptical and said that conceding that a president can be prosecuted for official acts in any instance — say, after the congressional impeachment and conviction process — undermines the president’s presidential immunity argument.

“Given that you’re conceding that presidents can be criminally prosecuted, doesn’t that narrow the issues before us to, ‘Can a president be prosecuted without first being impeached and convicted?’” Pan said. She added, “Once you concede that presidents can be prosecuted under some circumstances, your other arguments fall away.”

The judges were clearly concerned that accepting Trump’s argument would open a Pandora’s box of horrible acts by future presidents that would go unchecked and unpunished.

Trump’s lawyer tried to convince the panel that the real danger was letting this case go forward and opening a door to future presidents operating in fear of being prosecuted when they left office.

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2. The judges’ ruling could rely on their reading of the impeachment clause of the U.S. Constitution.

Lawyers for both sides and the judges spent a chunk of oral arguments debating the Constitution’s impeachment clause. Under Trump attorneys’ reading of the clause, a president can only be criminally prosecuted once Congress has voted to both impeach and convict him.

Congress had voted to impeach Trump for his actions around the Jan. 6 attack on the U.S. Capitol. The Senate then voted to acquit him. At the time, some Republicans said they were voting against conviction because they said the Justice Department could investigate and decide whether to charge Trump.

Prosecutor James Pearce said he disagreed with Trump’s interpretation and warned there would be little accountability for a president who could only be prosecuted if the Senate first convicts him. That would violate the separation of powers, he said.

Pearce said that Alexander Hamilton — a founder cited by Trump’s legal team — said that a sitting president could not be criminally prosecuted but that he did not preclude criminal prosecution of a former president.

3. The judges questioned whether Trump’s actions around the Jan 6. attack on the U.S. Capitol qualified as his official presidential duties — and whether the appeals court should even decide this.

Sauer said Trump’s actions around Jan. 6 — including meeting with the Justice Department and members of Congress about his belief that the election was stolen — were part of his presidential duties.

He also said Trump’s Twitter social media posts, some of which encouraged people to go to the Capitol on Jan. 6, also constituted an official presidential communication channel.

“All of those tweets were obviously immune,” Sauer said.

In a notable exchange, Judge Karen Henderson, an appointee of President George H.W. Bush, seemed skeptical of that claim, saying: “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 laws.”

But she also raised the idea of sending the case back to the U.S. District Court to untangle whether Trump’s alleged acts were part of his official duties or discretionary and carried out in his capacity as a private citizen.

4. Trump attended the hearing in person, suggesting he believes his criminal prosecutions could boost his presidential bid.

<a href="https://www.washingtonpost.com/politics/2024/01/09/trump-courtroom-campaign-president-iowa/" target=_blank>Trump attended the hearing</a>, sitting at the far right side of the appellate table.

Trump was not required to be present, and defendants do not typically attend appeals arguments in their case. But his decision to attend the hearing instead of spending more time in Iowa ahead of the state’s caucuses is yet another suggestion that he plans on blending his criminal defense with his campaign messages.

In a recent campaign message, Trump misleadingly claimed to supporters that Biden was “forcing me into a courtroom in our nation’s capital,” distracting him from campaign strategizing.

Devlin Barrett and Ann E. Marimow contributed to this report.

Washington University in St. Louis, BA

Perry Stein covers the Justice Department and FBI for The Washington Post. She previously covered D.C. education. Before she joined The Post in 2015, she was a staff writer for Washington City Paper and wrote for the Miami Herald. 

Perry Stein

Four key takeaways from Trump’s presidential immunity hearing

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