Trump will return to federal court as justices hear arguments on whether he has immunity from prosecution

WASHINGTON (AP) – Donald Trump will return to federal court in Washington for the first time in months as the appeals court hears arguments Tuesday on whether the former president is immune from prosecution on the charge that he bent on overturning the 2020 election results.

The outcome of the disputes has huge implications for both the landmark criminal case against Trump and the broader and legally untested question of whether a former president can be prosecuted for actions taken in the White House. It is also likely to set the stage for further appeals to the US Supreme Court, which last month rejected a request for a weigh-in but it can still be turned on later.

A quick solution is crucial for special prosecutor Jack Smith and his team, who are eager to have the case — now suspended pending appeal — heard before the November election. But Trump’s lawyers, in addition to seeking to dismiss the case, are hoping to take advantage of a drawn-out appeals process that could delay the trial well beyond schedule. Start date March 4including until potentially after the election.

Underscoring the importance for both sides, Trump intends to attend Tuesday’s arguments, even though the Iowa caucuses are just a week away and despite the fact that there is no requirement that defendants appear in person for such proceedings. This will be his first court appearance in Washington, D.C. one of four cities where he faces prosecution and potential trials, after his indictment in August.

He has already signaled that he may use the appearance to portray himself as a victim of a politicized justice system. While there is no evidence that President Joe Biden had any influence on the case, Trump’s argument may resonate with Republican voters in Iowa as they prepare to launch the presidential nominating process.

“Of course I was entitled, as President of the United States and Commander-in-Chief, to immunity,” he wrote in a social media post, adding: “I looked for voter fraud and found it, which is my duty to do, and otherwise govern our country.”

Former presidents enjoy broad immunity from lawsuits for actions taken as part of their official duties in the White House. But because no former president before Trump has ever been indicted, courts have never before considered whether that protection extends to criminal prosecution.

Trump’s lawyers insist it is, arguing that courts lack the authority to review the president’s official actions and decisions and that their client’s prosecution represents a dramatic departure from more than two centuries of American history that would open the door to future “political motivated ” cases. They filed a similar motion Monday in another criminal case against Trump in Georgia.

Smith’s team said that presidents are not entitled to absolute immunity and that in any event, the acts Trump is alleged to have committed in the indictment — including plans to attract fake voters in battleground states won by Biden and pressing his Vice President Mike Pence to reject the January 6, 2021 electoral vote count. — are far outside the president’s official duties.

“Immunity from prosecution would be particularly dangerous when, as here, the former president is alleged to have engaged in criminal conduct designed to overturn the results of a presidential election in order to remain in office past term,” Smith’s team wrote in short.

“A president who illegally seeks to maintain his power through criminal means unchecked by potential prosecution could threaten both the presidency itself and the very foundations of our democratic system of government,” they added.

Prosecutors say that if Trump’s view of the law passes, a president could get away with managing a lucrative government contract in exchange for a bribe; instructing the FBI director to plant incriminating evidence against a political enemy; or selling nuclear secrets to a foreign adversary.

The case is being heard in the U.S. Court of Appeals for the District of Columbia Circuit before Judges J. Michelle Childs and Florence Pan, both appointed by President Joe Biden, and Karen LeCraft Henderson, who was appointed to the judgeship by former President George H.W. Bush.

It’s unclear how quickly the panel will rule, though it has signaled it intends to work quickly. The judges asked both prosecutors and defense lawyers to submit briefs in quick succession last month, including setting filing deadlines on Saturday.

U.S. District Judge Tanya Chutkan, who presided over the case, rejected the Trump team’s arguments, ruling on December 1 that the office of the presidency does not grant a “get out of jail pass.” Trump’s lawyers appealed that decision, but Smith’s team, determined to proceed with the case on schedule, tried to bypass the appeals court by asking the Supreme Court to expedite the immunity issue and rule in the government’s favor. The judges refused, without explanation, to intervene.

The call is vital to Trump’s broader strategy to try to delay the subversion case until after the November election, when a victory could authorize him to order the Justice Department to drop the prosecution or even seek a pardon for myself. He faces three other criminal cases in both state and federal court, although the Washington case is scheduled for a first hearing.

Trump’s lawyers also invoked a constitutional provision against double jeopardy in the immunity dispute, saying the case involved similar conduct for which he had already been impeached by the House of Representatives but acquitted by the Senate.

Smith’s team said there is no bar to prosecutors bringing charges against someone who has been impeached and acquitted in Congress, and note that their charges are not identical to those Trump faces in impeachment proceedings.


Richer reported from Boston.

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