Trump's appeals hearing on presidential immunity claims

A federal appeals panel expressed deep skepticism Tuesday toward Donald Trump’s argument that he can’t be prosecuted for trying to overturn the 2020 election, raising the potentially extreme implications of absolute presidential immunity.

Trump’s lawyers argued that his federal election subversion indictment should be dismissed because he is immune from prosecution. But the three judges on the US Court of Appeals for the District of Columbia Circuit panel questioned whether this immunity theory championed by Trump’s lawyers would allow presidents to sell pardons or even assassinate political opponents.

Special counsel Jack Smith’s team argued that a president is not above the law, warning that allowing presidential immunity from prosecution would open a “floodgate” and saying that it would be “awfully scary” if there were no criminal mechanism to stop future president’s from usurping the vote and remaining in power.

Still, the judges also wondered if they even have jurisdiction to decide the question of presidential immunity at this point in the case. Trump is scheduled to go on trial in March for his role in trying to overturn the 2020 election. He has pleaded not guilty. Trump chose to attend the hearing – a reminder of the role that his four criminal indictments are playing in his presidential campaign.

The appeals court ruling is likely to set up a showdown over presidential immunity at the Supreme Court. The judges have not set a deadline but given the circumstances it’s unlikely they will take too much time.

Here are key takeaways from Tuesday’s oral arguments:

Judges worry about scope and impact of Trump’s immunity argument: The Circuit Court judges asked pointed questions of Trump attorney John Sauer over his claims that Trump has immunity because his actions after losing the 2020 election were part of his presidential duties. The judges also challenged him on his claim that Trump could only face criminal prosecution if he was first impeached and convicted by Congress for the same conduct. DC Circuit Court Judge Karen Henderson, an appointee of President George H.W. Bush, appeared dubious that Trump was acting within his official duties. “I think it is paradoxical to say that his constitutional duty to take care of the laws be faithfully executed allows him to violate criminal law,” Henderson said. Some of the judges pushed back on Trump’s immunity claims by highlighting the potentially dangerous path that it could lead to, with future presidents being able to brazenly break the law without consequences.

Key debate over whether Trump’s impeachment prevents prosecution: Trump’s attorney Sauer argued that a president can only be criminally charged and tried following a conviction for the alleged actions in the Senate. He had been acquitted by the Senate in February 2021. Judge Florence Pan, a President Joe Biden nominee, questioned Sauer over his contention that impeachment and conviction by Congress was required for any criminal prosecution – while also pressing him to acknowledge that he was conceding that there is a path for presidents to face prosecution. “Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away, and the issues before us are narrowed to are you correct in your interpretation of the impeachment judgment clause?” Pan said.

Trump lawyer says immunity keeps shut ‘Pandora’s box’ for indicting presidents: Sauer painted a picture of what he called a dangerous “Pandora’s box” of indicting former presidents for actions they took while in office. He argued that special counsel Smith’s decision to bring charges against Trump could lead to similar prosecutions. He warned that this case could theoretically lead to charges against Biden, Barack Obama or George W. Bush. “To authorize the prosecution of a president for his official acts would open up Pandora’s box from which this nation may never recover,” Sauer said.

Read more key takeaways.

The DC Circuit Court of Appeals heard arguments today on whether the federal 2020 election subversion case against Donald Trump should be dismissed based on the former president’s claims of immunity.  

There were no cameras in court, but courtroom sketch artist Bill Hennessy captured the scene with pencil and paper.

Former President Donald Trump continued to argue he should have presidential immunity after he attended a federal appeals court hearing in Washington, DC.

"You can’t have a president without immunity," he added. "You have to have, as a president, you have to be able to do your job.”

Trump also mirrored arguments that his lawyers made about in court, saying that his prosecution “opens Pandora’s box.”

The location of where Trump made his post-hearing remarks is notable: The Waldorf Astoria Washington DC occupies the Old Post Office building, where the Trump Organization had operated a luxury hotel for several years, including during his four years in the Oval Office. His company completed a sale on its lease of the property in 2022.

The packed courtroom in Washington, DC, fell silent at around 9:25 a.m. ET when former President Donald Trump entered. He wore his standard navy blue suit and red tie. His entourage included adviser and lawyer Boris Epshteyn and Walt Nauta, his co-defendant in the classified documents case pending in federal court in southern Florida. 

Special counsel Jack Smith entered the room about 25 minutes before Trump arrived. He was flanked by more than a dozen members of his team. Smith walked a few rows back to talk to the parents of James Pearce, a lawyer arguing for the government. 

The room, ringed with portraits of previous members of this appeals court, rose when the three judges hearing this case entered. 

Trump rose along with everyone and appeared mostly subdued for much of the day’s arguments. 

The former president leaned forward at times; seemingly to better hear judge Karen LeCraft Henderson, a George H.W. Bush appointee, who spoke softly, and occasionally spoke to one of his attorneys. 

He was much more active when Pearce began making his presentation. He began taking notes on a yellow pad and occasionally passing his notes to his attorney John Sauer. 

The former president appeared to purse his lips and looked ahead when one of the judges cited Trump claims from the congressional record. He wrote notes and passed them along. 

It’s unclear if Sauer used any of Trump’s notes, but near the end of the hearing, Sauer noted that all allegations against the president related to activity while he was in office. Sauer motioned toward his client and Trump nodded. 

As the proceeding ended, Trump rose, looked around the room briefly and then slowly walked out. 

Unlike previous court hearings it didn’t appear Trump and Smith looked at each other. 

Remember: There were no cameras inside the federal courtroom but a live audio feed of the hearing was broadcast. CNN's reporters were inside the room providing updates on the proceedings.

As the longest serving jurist on this panel, and the sole Republican appointee among these three, what senior Judge Karen Henderson does in this case will be closely watched and a signal to many other judges that could also be asked to consider these issues, including the Supreme Court.

Henderson was skeptical that Donald Trump was acting within his official duties when he tried to overturn the 2020 presidential election results, saying that Trump attorney John Sauer’s arguments appear “paradoxical.”

Henderson had several cases about the American presidency before her, and she's written extensively about the presidency and how courts should think about protections around it.

She's even been on an appeals court panel for a previous Trump case, when he challenged Congress' ability to receive his tax returns from the IRS after he left office. Henderson at that case's oral arguments had, surprisingly, asked if there should have been special consideration if Trump ran for office again — which he is now doing. (His tax returns were ultimately released, following the courts' approval.)

But in a concurring opinion that Congress could get Trump's tax returns, Henderson pointed out she believed "the burdens borne by the Executive Branch are more severe and warrant much closer scrutiny" than what others on the panel said at that time.

Henderson also previously had to consider immunity around the presidency, when she sat on the DC Circuit panel regarding a congressional subpoena of Trump's then-White House counsel Don McGahn. She wrote at that time that McGahn couldn't avoid responding to his subpoena entirely by claiming absolute immunity around the presidency, but could invoke some protections around the presidency to limit what he would have to say to Congress.

She noted in her concurring opinion in that case that criminal investigations could reach further into the bubble around the presidency because of grand jury's needs, and that lawsuits against sitting presidents for their unofficial acts couldn't be dodged with a temporary presidential immunity claim.

Trump’s attorney John Sauer said at the end of the hearing Tuesday that a former president could be prosecuted for “official acts” if they were first convicted by the Senate during impeachment proceedings.

The former president has repeatedly asserted that challenging the outcome of the presidential election fell under his duties as president he cannot be prosecuted for any official acts he took.

He added, however, that he believes there are “all kinds of other legal doctrines that are violated in this case.”

Most Americans don’t believe that former president Donald Trump should be immune from prosecution for his actions during his presidency, a recent survey shows.  

In a January CBS News/YouGov poll, US adults say, 64% to 36%, that Trump should not have immunity from criminal prosecution for actions he took while president. Both an 86% majority of Democrats and about two-thirds of independents say Trump should not have immunity, while 69% of Republicans say that he should.  

In the same survey, a slimmer 53% majority of Americans say they view the indictments against Trump as “upholding the rule of law,” with an identical 53% dismissing the idea that they constitute “an unfair attempt to stop Trump’s 2024 campaign.”

About two-thirds of Americans say they’ve heard or read at least some news relating to the indictment charges brought against Trump relating to January 6th and the 2020 presidential election, with just 31% saying they’ve heard or read a lot about it. 

In a December poll from the Washington Post and the University of Maryland, 57% of Americans said that the Justice Department was “holding Trump under the law like anyone else” by charging him with criminal conspiracy to defraud the United States, with 41% saying the Justice Department was “unfairly targeting Trump for political reasons.” Just 4% of voters who supported Joe Biden in 2020 viewed the charges as unfairly politicized, while a slightly larger 16% of 2020 Trump voters viewed the charges as providing accountability. 

In a CNN survey taken last summer, 47% of Americans said that Trump was facing so many criminal charges largely as a result of his own actions, with a smaller 31% saying those charges were largely a result of political abuse of the justice system, and the remainder demurring.  

The landmark hearing over whether former President Donald Trump is immune from prosecution by special counsel Jack Smith has ended after roughly 75 minutes.

Assistant special counsel James Pearce pushed back on Donald Trump’s argument that prosecuting a former president would open a “floodgate" of counter-charges against political opponents, saying that it would be “awfully scary” if there were no criminal mechanism to stop future president’s from usurping the vote and remaining in power.

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

“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.”