Judges skeptical of Trump arguments for broad criminal immunity

A three-judge panel during a hearing Tuesday appeared broadly skeptical of former President Trump’s claims that he enjoys broad presidential immunity from prosecution on charges related to the 2020 presidential election.

Trump's lawyers took a firm position, arguing former presidents such as Trump can only face prosecution if they are first impeached and then convicted by the Senate. They have asked the court to toss the case entirely.

But the three-judge panel appeared poised to reject those arguments, warning that Congress may not always choose to impeach a president for unlawful conduct, and that such a stance would prohibit prosecutors from later acting on new evidence of crimes if it went unweighted by the Senate.

Trump attended the hearing in person before the Washington, D.C., Circuit Court of Appeals, leaving the campaign trail less than a week before the Iowa caucuses to travel to the nation's capital. Trump's legal travails have helped him on the campaign trail, where he has a big lead on GOP rivals in Iowa and nationally.

At the courthouse, Trump spent the hour-plus argument largely staring ahead, making brief comments to his lawyers.

John Sauer, Trump’s attorney, was peppered by the judges with a number of hypotheticals about the extent a president would be shielded from prosecution if they were not impeached for the conduct, such as ordering SEAL Team Six to kill a political rival or selling presidential pardons.

Sauer said his answer was a “qualified yes.”

“He would have to be impeached and convicted,” first, Sauer said, before prosecutors would be able to contemplate a case against a former president.

But the judges sounded largely skeptical of those arguments

At one point, Judge Florence Pan, a President Biden appointee, noted that Trump’s legal team argued essentially the opposite case when he faced a second impeachment, in this case for his conduct related to the Jan. 6 attack on the Capitol.

"It seems many senators relied on that,” Pan said.

Judge Michelle Childs, another Biden appointee, also noted that a president could resign rather than face impeachment, something that under the framework of Trump’s attorneys would allow them to dodge future prosecution.

At one point, Sauer argued the threat of prosecution could have a chilling effect on future presidents’ decisions, saying they would need to look over their shoulder and ask, “Am I going to jail for this?” when making controversial decisions.

Judge Karen Henderson, an appointee of President George H.W. Bush, said Trump’s argument gives executives too much leeway.

“I think it is paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” she said.

DEVELOPING

Zach Schonfeld and Ella Lee contributed.