“Preposterous argument”: Expert says Trump statements “coming back to haunt him” in immunity hearing

Things aren’t looking good for Donald Trump’s immunity claim.

A federal appellate court hearing oral arguments in the former president’s appeal in his federal election subversion case strongly suggested Tuesday that it would reject his claims of presidential immunity from criminal charges connected to his effort to overturn the 2020 election results, according to Politico. The three presiding judges appeared deeply skeptical of his argument that a president could not be prosecuted — even for assassinating a rival — if he did not first go through Congress’ formal impeachment and conviction process.

“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” said Judge Karen Henderson, who was appointed by George H.W. Bush.

Despite the skepticism, the panel of judges, which includes Biden appointees Florence Pan and Michelle Childs, seemed split over how to cast their decision. No matter what they rule, the question will likely be appealed to the Supreme Court for a final determination on whether Trump’s Washington, D.C. criminal trial will occur this year.

The trial is currently slated to begin March 4, but will likely be postponed because of the litigation over Trump’s immunity claims, which argue he should be shielded from prosecution for his alleged misconduct because he was acting in his official capacity as president. Special counsel Jack Smith has accused the former president of attempting to disenfranchise American voters and defraud the country by peddling false claims of voter fraud in the 2020 election and trying to remain in power.

U.S. District Court Judge Tanya Chutkan, who is assigned to oversee the trial, rejected Trump’s immunity claim early last month. Trump then filed an appeal on the immunity issue, essentially pausing the trial proceedings until the question is resolved. 

Tuesday’s hearing lasted over an hour, with the three judges of the D.C. Circuit Court of Appeals seeming inclined to maintain Chutkan’s ruling though their exact reasoning remained unclear, according to Politico.

Trump’s lead attorney, John Sauer, argued that allowing Smith’s case to go further would set a “republic-shattering” precedent that would allow future presidents to reflexively prosecute their predecessors from opposing parties. 

To “authorize the prosecution of a president for his official acts would open a Pandora’s Box from which this nation may never recover,” Sauer argued.

None of the three appeals judges seemed convinced, however. In one instance, Pan asserted that dismissing Trump’s prosecution would result in its own slate of negative outcomes for the nation, such as weakening enforcement of criminal laws and the Constitution’s pledge that executive power will only go to a duly elected president. 

Though mostly directing arguments at the judges, Sauer also took the opportunity to sprinkle in campaign fodder for audiences outside the courtroom, describing Trump as President Joe Biden’s “number one political opponent” and “greatest political threat.” He later declared in his rebuttal argument near the end of the hearing that Trump was “leading in every poll.”

The judges further nipped at Trump’s arguments, noting a key discrepancy. Though the former president claimed “absolute” immunity from prosecution for his official acts, his attorneys also said that presidents can be prosecuted for that conduct if they’re first impeached and convicted by Congress. Even though a majority of senators voted to convict him, Congress acquitted Trump for his role in inciting the Jan. 6, 2021 Capitol attack.

Pan emphasized that tension, suggesting that if the panel disagreed with the notion that impeachment must precede a president’s prosecution, then it must also allow Smith’s case to proceed to trial. 

“Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away,” Pan said.

CNN legal analyst Elie Honig also pointed out the holes in the Trump legal team’s argument on Tuesday.

“The problem with the argument that Trump’s lawyer just staked out, that there has to be an impeachment and conviction before there can be a prosecution, is it leads to absurd results that cannot be the way this works,” Honig said.

“Impeachment is entirely different,” he continued. “A judgment about whether to impeach could be political, it could be based on any number of factors. That is just a different ballgame altogether than a decision whether to prosecute and eventually convict somebody.”

Honig went on to question why Sauer didn’t advance the argument presented in the legal team’s brief, which referenced a 1982 Supreme Court ruling that found presidents should be protected from civil lawsuits, in which the underlying conduct involved actions taken within the “outer perimeter” the president’s official duties. 

“The thing that I keep coming back to is they had an easier way — Trump’s team had an easier way. They briefed a better way,” Honig said. “They just made the traditional argument of what he’s charged with doing here is within the scope, within the outer perimeter of his job as president. If they stuck to that, I still think they probably would have had a losing argument, but they wouldn’t have had a preposterous argument, and I think they would have had a stronger case to make.”

While discussing an instance in Trump’s Tuesday hearing when his lawyers were asked about past statements made in his January 2021 impeachment hearings, former Manhattan prosecutor Karen Agnifilo highlighted that “clearly, Trump’s arguments in other forums are coming back to haunt him.”

“Judges are listening to each other,” Agnifilo told CNN. “They’re seeing what’s happening in other cases or in other forums, and you can’t be inconsistent and disingenuous, especially when you speak to the court.”

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The ex-prosecutor went on to praise the judges for narrowing the number of outstanding concerns of the case, which include whether presidents are immune from criminal prosecution generally, whether double jeopardy could apply, whether the court has jurisdiction to hear the case now given that these appeals typically follow a conviction, and whether one has to be impeached and then convicted in order to be prosecuted via the impeachment judgment clause. 

“What I thought that the appellate court did a really excellent job here was narrowing the issues down,” Agnifilo said. “At the end Judge Pan got Mr. Sauer, who represents Trump, to concede that there is no absolute immunity here.”

Because Sauer answered yes to her question about whether prosecution would be proper for a president on the same or related charges if a president had been impeached and convicted by Congress, Pan got the Trump lawyer to concede there is no double jeopardy and no absolute immunity, Agnifilo explained. 

“The only remaining issues here are does the impeachment judgment clause require a conviction first in order to do this,” she added.

“Trump’s lawyer bobbed and weaved, but was basically pinned to wall by court on position that if court doesn’t accept his impeachment judgment clause argument, he loses,” tweeted former U.S. Attorney Harry Litman. “And court won’t accept argument, which is outlandish and illogical.”

National security lawyer Bradley Moss said on X/Twitter that he expects the judges to “rule against Trump, and a decision to issue within the next two weeks.”

“Scheduling question becomes what happens next: they can do a temporary stay, saying ‘you have X days to appeal or this automatically goes into effect’, so as to keep this thing expedited,” Moss added, before speculating about the potential timeline.

Moss explained that, if the case goes directly to the Supreme Court, he doesn’t expect the justices to rule earlier than early March even under an expedited schedule, meaning the case would return to Chutkan by March at the earliest and push the current March 4 trial date back. 

“You’re likely looking at a trial no early than May at that point,” Moss concluded. “[T]ime will tell.”