by Lawyers for former President Donald J. Trump on Saturday night asked an appeals court in Washington to dismiss a federal indictment accusing him of conspiring to overturn the 2020 election, arguing that he was immune from the charges because they arose from actions he had taken while he was in the White House.
The weekend filing before the U.S. Court of Appeals for the District of Columbia Circuit was the latest salvo in a crucial and long-running battle between Trump and special counsel Jack Smith over whether the former president enjoys immunity. in the face of electoral interference. charges.
The fight over immunity has now affected all three levels of the federal judicial system, including the Supreme Court, which on Friday denied Smith’s request to intervene and hear the case before the appeals court. The final resolution of the issue will have a significant effect not only on the overall viability of the election interference case, but also on whether a trial on the charges is postponed until the heart of the 2024 campaign, or even after the election. At that point, if Trump wins the presidency, he could order the charges to be dropped.
In a 55-page brief before the court’s three-judge panel, D. John Sauer, a lawyer who has been handling appeals for Trump, argued that under the Constitution, judges cannot hold the president accountable for any acts committed while in office. the office.
“Under our system of separated powers, the judiciary cannot judge the official acts of a president,” Sauer wrote, adding: “That doctrine is not controversial.”
But of course the fact that this issue was being debated on appeal suggested that it was at the center of a hotly contested dispute.
When Trump initially filed his motion to dismiss the election interference case, his lawyers essentially sought to spin the story told in Smith’s indictment.
Prosecutors contend that Trump has violated the law by seeking, among other things, to pressure state lawmakers to stay in power and pressure Justice Department officials to validate his claims that the election had been marred by a fraud.
While prosecutors described those actions as crimes, Trump’s lawyers sought to reframe them as examples of the former president’s fulfillment of his official duty to protect the integrity of the election.
In his brief to the appeals court, Sauer argued that executive immunity must exist, given the fact that no president or former president had been charged with a crime before Trump.
“The unbroken tradition of not exercising the supposedly formidable power to criminally prosecute a president for official acts – despite ample reasons and opportunities to do so, for centuries – means that the power does not exist,” he wrote.
Sauer went on to claim that the trial judge, Tanya S. Chutkan, had been wrong in several ways when she decided the matter against Trump earlier this month. In an order rejecting Trump’s immunity claims, Judge Chutkan defended a limited view of presidential power, writing that there was nothing in the Constitution or founding documents of the United States to support the idea that a former commander in chief should not be subject to federal criminal law. .
Judge Chutkan had argued, for example, that Trump should not enjoy “a lifetime get-out-of-jail-free pass” and that, despite his former role as president, he should still be “subject to federal law.” investigation, accusation, prosecution, conviction and punishment of criminal acts committed during the exercise of office.”
But Sauer argued that executive immunity was not intended so much to protect a president (or former president) from legal liability, but rather to prevent a leader from being the victim of false accusations brought by political enemies. He also said the only way a former president could be prosecuted would be if he had first been impeached and convicted of similar crimes by Congress.
The immunity case is being heard by a panel made up of the judge Karen L. Hendersonwho was appointed by President George HW Bush, and the judges Florence Y. Pan and J. Michelle Childs, who were appointed by President Biden.
The judges agreed to work exceptionally quickly and set an accelerated timeline for the case at Mr. Smith’s request. All written submissions must be submitted by January 2. The court intends to hold oral arguments on January 9.
By itself, the fact that the court ordered Trump’s lawyers to file their papers on the Saturday before Christmas suggests how quickly the appeals judges plan to move. Mr. Smith’s office is scheduled to file its own documents in the case on the Saturday before New Year’s Eve.
The fight between the defense and prosecution over the speed of the appeal has been as (or perhaps even more) contentious than the battle over the underlying legal issues. This is largely because Judge Chutkan stayed the case while the appeal is heard, jeopardizing the current trial start date of March 4.
If the trial were postponed until the summer, it would coincide with the final stretch of Trump’s presidential campaign. Forced to be in Washington every weekday for two or three months, the former president would almost certainly take his campaign to the courthouse steps, turning the proceedings into an even bigger media circus than he already promises to be.
The timing of the election subversion trial in Washington could also have a significant impact on the timing of Trump’s other three criminal cases.
In addition to the trial in Washington, Trump also faces trial in Manhattan on charges related to hush money payments to a porn actress in the run-up to the 2016 election; in Florida, he is accused of illegally retaining dozens of classified documents after leaving office; and in Georgia, where he is accused of altering that state’s elections in an extortion process.
It has been a challenge to find time in the calendar for each of the procedures in relation to each other, as well as in the context of the campaign. Mr. Smith’s prosecutors have tried to use every means at their disposal to keep the trial in Washington as scheduled.
One of his boldest moves was his request last week for the Supreme Court to bypass the appeals court and quickly issue its own decision on the immunity question. While the justices declined to take up the case for now, they may have a second chance to consider it after the appeals court issues its decision.
