A lawyer for former President Donald Trump has faced a barrage of questions from a three-judge appeals court about his claims to presidential immunity – including whether he could use the military to assassinate a political rival.
Trump is seeking to have his criminal charges dropped on January 6 in Washington, DC, on the grounds, among other things, that he had claimed presidential immunity.
He argues that the allegations against him fell within the scope of his official responsibilities as president during his term in office.
As Trump watched on appeal, Judge Florence Pan asked his lawyer, “A yes or no question.” Could a president who ordered SEAL Team 6 to assassinate a political rival who has not been indicted face criminal charges ?
Trump lawyer John Sauer responded: “If he were charged and convicted first.”
“So your answer is no,” Pan shot back.
“My answer is qualified: Yes… one would expect a quick impeachment and conviction,” Sauer said.
Donald Trump's lawyers will argue in a federal appeals court hearing that he is immune from prosecution in voter fraud cases, which will have significant implications for his 2024 campaign
The Republican frontrunner's motorcade turned into the U.S. Court of Appeals on Tuesday morning, surrounded by police and security guards
The judge also tested Trump's claim to immunity by asking whether a president could sell U.S. military secrets or pardons without then being prosecuted.
Pan told Sauer: “I asked you a series of hypotheses about criminal actions that could be taken by a president and considered official acts and asked you whether such a president would be prosecuted… and your answer was no.” '
Sauer responded that selling pardons could not be viewed as an official act.
Judge Pan also criticized Sauer for considering the role of impeachment.
“Your position as I understand it is: If a president is impeached and convicted by Congress, he is subject to criminal prosecution, correct?” she said.
“Isn’t this also an admission that a president can be prosecuted for an official act?”
In his arguments, Sauer said the criminal prosecution of a former president set a dangerous precedent.
He said: “Authorizing the prosecution of a president for official acts would open a Pandora's box from which this nation may never recover.”
The criticism from the bench is at stake not only for Trump's criminal case, but also for the timing of his trial.
U.S. District Judge Tanya Chutkan has set the trial date for March 4, a day before Super Tuesday, and an appeal by Trump to the full court or the Supreme Court could stall the case.
Trump will not be asked any questions and will not interact directly with the judge before he returns to the campaign trail – just six days until the Iowa caucuses
The case is set to go to the Supreme Court, but if the justices side with him, it could derail special counsel Jack Smith's federal case
Special Counsel James Pearce, arguing for the government, used the comparison in his off-hours before the Judiciary Panel.
“What kind of world do we live in… when a president orders his SEAL team to assassinate his political rival and, for example, resigns before being impeached?” “Not a criminal act,” is how he characterized Trump’s legal position.
Judge Michelle Childs brought the Midlands Asphalt Corp. case. v. U.S. — a potential precedent that has intrigued legal analysts because it offers the court a potential opportunity to quickly reject Trump's appeal on jurisdictional grounds.
But Pearce expressed his preference for the court to “rule the merits” of Trump's claim to absolute immunity for official actions he took as president. He raised questions about various future defense motions that could entangle the case.
Sauer argued that criminal prosecution of his official actions would open a “Pandora’s box.”
He asked whether George W. Bush could be prosecuted for waging war against Iraq based on false information, or whether Barack Obama could be prosecuted for a drone strike.
Sauer said allowing a president to be prosecuted for official acts “would open a Pandora's Box from which this administration may never recover.”
If the panel rules against Trump, he could seek to appeal his case to the full D.C. Court of Appeals and then go to the Supreme Court.
Judge Karen LeCraft Henderson asked Sauer about times in the past when the courts criticized the president's authority, including Harry S. Truman's seizure of steel mills during the Korean War.
“How does this fit with your position that the judiciary can never review executive actions?” she pressed.
She also commented on the president's oath to uphold the Constitution.
“I find it paradoxical to say that his constitutional duty to ensure the faithful implementation of the laws allows him to violate the criminal law,” she said.
Trump had previously arrived in Washington DC for the federal appeals court hearing, which will have a major impact on his 2024 election campaign.
The 77-year-old former president's lawyers argue he is immune from prosecution in election subversion cases because he was serving as president when he conducted fraud investigations.
The Republican frontrunner's motorcade turned into the U.S. Court of Appeals on Tuesday morning, surrounded by police and security guards.
In it, the three-judge panel will decide whether the charges brought against him by special prosecutor Jack Smith on January 6 should be dismissed.
Trump will not be asked any questions and will not interact directly with the judge before he returns to the campaign trail – just six days until the Iowa caucuses.
This comes as a new CBS News poll found that 64 percent of Americans do not believe Trump should be immune from prosecution for his actions as president, while 34 percent believe he should be. However, 69 percent of Republicans believe he should be immune.
Trump claims he should be protected from prosecution for carrying out his official duties as president while investigating allegations of fraud related to Joe Biden's 2020 election victory.
He also argues that he should not have been impeached because the Senate acquitted him during his impeachment after January 6th.
The case is set to go to the Supreme Court, but if the justices side with him, it could derail Smith's federal case.
Trump has argued in several cases that he enjoys presidential immunity and is already facing challenges seeking to disqualify him from the ballot in states like Colorado and Maine.
Trump has a commanding lead over his Republican rivals as the primary season begins, punctuated by court appearances.
The case is being heard by Judges Karen LeCraft Henderson, Michelle Childs and Florence Pan.
Police secure the exterior of the E. Barrett Prettyman United States Courthouse ahead of Trump's arrival
The former president, 77, will be before the U.S. Court of Appeals on Tuesday, where a three-judge panel will decide whether charges brought against him by special counsel Jack Smith should be dismissed
Henderson has previously handled Trump cases, including the question of whether Congress could access his tax records.
A lower court has already ruled that Trump is not immune, and District Judge Tanya Chutkan has refused to dismiss the case.
“Whatever immunities a sitting president may enjoy, the United States has only one head of government at a time, and that position does not grant a lifetime exemption from prison,” Chutkan wrote.
“Former presidents do not enjoy special conditions regarding their federal criminal liability.”
Trump then appealed the decision to the appeals court.