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US appeals court judges appear sceptical of Donald Trump's immunity claim

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Washington, DC | January 10, 2024 6:51:24 AM IST
A federal appeals panel on Tuesday expressed deep scepticism over Donald Trump's immunity from prosecution for trying to overturn the 2020 elections, raising the potentially extreme implications of absolute presidential immunity, CNN reported on Tuesday.

According to the report, the Republican leader'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.

CNN reported that judges also wondered if they even had the 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

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.

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.

The Circuit Court judges asked pointed questions of Trump's 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.

This signalled their overall scepticism of Trump's view, suggesting they are closer to where District Judge Tanya Chutkan landed, which was a strong rejection of Trump's absolute immunity theory.

Judge Florence Pan, a President Joe Biden nominee, posed some striking hypothetical questions to Sauer, to flesh out the bounds of his immunity argument. His legal theory claims former presidents are shielded from prosecution for official actions if there isn't an impeachment and conviction by Congress first.

Pan also peppered Sauer with hypotheticals about whether his immunity theory would also apply to a president selling pardons to criminals or selling military secrets to an enemy state.

Assistant special counsel James Pearce later picked up on the judges' line of thinking.

"It would be awfully scary if there weren't some sort of mechanism" to indict future ex-presidents if they similarly tried to stay in power despite losing an election, Pearce said.

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.

Pan 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.

CNN reported that the judge noted that many senators relied on the idea that it would be up to the Justice Department to handle an investigation into Trump's actions following the 2020 election when they were considering whether to convict Trump following his impeachment.

Sauer repeated at the end of Tuesday's hearing that a former president could be prosecuted for "official acts" if they were first convicted by the Senate during impeachment proceedings.

"Say the president was impeached and convicted on a charge of incitement of insurrection," Pan asked, "then the government could bring a prosecution for the same or related conduct?" (ANI)

 
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