An appeals court will hear arguments on Trump’s claim that he is immune from prosecution over his challenge of the 2020 election. Follow here for live updates.
By Sam Dorman
Here what’s happening:
- Trump Says Case Opens ‘Pandora’s Box’
- Argument Ends
- Opening the ‘Floodgates’?
- Trump Lawyer Begins Rebuttal
- Main Question in Case
- ‘Extraordinarily Frightening’ Consequences: Pearce
- Pearce Addresses Jurisdiction
- Special Counsel’s Team Begins Argument
- Judge Questions Scope of Presidential Immunity
- Trump Lawyer Not Challenging Smith’s Authority
- Marbury v. Madison
- Trump Lawyer Argues Trump’s Conduct Was Not Private Act
- Charging a President for Official Acts Opens ‘Pandora’s Box’: Trump Lawyer
- Appeals Hearing Begins
- Trump Arrives
- Jack Smith Arrives
- Trump to Attend Appeals Court Hearing on Presidential Immunity Claim
Trump Says Case Opens ‘Pandora’s Box’
Trump spoke after the hearing, describing it as a “momentous day.” “We have a great argument,” he said. DOJ, he said, conceded certain points that should have ended the case. He added that the prosecution by “Biden’s DOJ” was “very unfair.”
Trump also defended himself, saying he “did nothing wrong,” and emphasized the need to combat voter fraud.
“I feel that as a president you have to have immunity, very simple,” he said.
“I think they feel this is the way they’re going to try and win and that’s not the way it goes. It will be bedlam in the country. It’s a very bad thing. It’s a very bad precedent. As we said, it’s the opening of a Pandora’s Box.”
President Trump’s attorney John Lauro offered comments as well.
“First of all, this was a momentous day. This is the first time in our nation’s history that a sitting president has decided to prosecute his major opponent who’s leading in all the polls,” he said.
Mr. Lauro added that the president was being prosecuted “for carrying out his responsibilities, doing his job as president.”
“We can’t have a country where every four years there’s a cycle of political recrimination.”
Argument Ends
Judges Pan and Childs asked questions about the implications of Trump’s argument before Mr. Sauer asked the three-judge panel to reverse the lower court’s decision.
The hearing took roughly 75 minutes.
Opening the ‘Floodgates’?
Mr. Sauer argued that Mr. Pearce forecasted a situation where the floodgates will be opened.
This DOJ’s prosecution was dangerous, he suggested, because it was a situation where the administration of Trump’s chief political opponent was prosecuting him.
That situation was “tailor-made,” he said, to produce “cycles of recrimination.”
Trump Lawyer Begins Rebuttal
Mr. Sauer urged the court to focus on constitutional provisions surrounding the immunity argument. The indictment didn’t reference anything after Trump left office, he said.
According to Mr. Sauer, the “frightening” future Mr. Pearce referenced is the one America has lived under for the last 235 years.
Main Question in Case
Judge Pan asked whether this case boil down to whether Trump was correct in interpretation of the impeachment judgment clause in Constitution?
Mr. Pearce agreed that was the main issue, saying that textual, structural, historical, and practical reasons pointed to Trump’s team being wrong.
‘Extraordinarily Frightening’ Consequences: Pearce
Mr. Pearce referenced Judge Pan’s earlier hypothetical whether a president can use SEAL Team 6 to assassinate a political rival.
He said that and other hypotheticals represented an “extraordinarily frightening future.”
Pearce Addresses Jurisdiction
Even if a dismissal on jurisdiction might move the case faster, which would serve the special counsel’s aims, that’s not the right analysis, Mr. Pearce said.
He asked the court to reach the merits of the case even amid doubts about jurisdiction.
Special Counsel’s Team Begins Argument
Attorney James Pearce argued that the president has a unique constitutional law but is not above the law. The president didn’t enjoy immunity after leaving office, he said.
“Separation of powers principles, constitutional text, history precedent and other immunity doctrines all points to the conclusion that a former President enjoys no immunity from criminal prosecution,” Mr. Pearce argued.
“At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognize some novel form of criminal immunity.”
Judge Questions Scope of Presidential Immunity
Judge Florence Pan asked about balancing the need for presidential protection and public interest.
“It seems to me that there are some other article II interests here that are countervailing,” she said, noting the executive vesting clause and law enforcement.
President Trump’s position was not fully aligned with the institutional interests of the executive branch, she suggested.
Trump Lawyer Not Challenging Smith’s Authority
Judge Childs asked about brief challenging Special Counsel Smith’s authority.
Mr. Sauer said it raises very “powerful questions” but his team hadn’t yet raised those.
Marbury v. Madison
The indictment’s scope – Everything alleged in the indictment is a presidential act, Sauer argued. END
Judge Karen Henderson raised a distinction between ministerial and discretionary acts outlined in the 1803 Supreme Court case of Marbury v. Madison.
Mr. Sauer responded that distinction has been held for subordinate officers. Nothing in this case can be remotely described as ministerial, Sauer argued. Even if that distinction goes up to the president, it wouldn’t save the indictment, he added.
Judge Henderson responded, saying Sauer was missing what she was asking. She said it’s “paradoxical” to say Trump’s constitutional duty to execute laws allowed him to violate criminal law.
Mr. Sauer argued that everything alleged in the indictment is a presidential act.
Trump Lawyer Argues Trump’s Conduct Was Not Private Act
Judge Michelle Childs noted that the DOJ’s indictment alleged Trump’s conduct was private rather than official acts.
Mr. Sauer, in response, argued DOJ’s legal theory was wrong and foreclosed by Supreme Court precedents.
Charging a President for Official Acts Opens ‘Pandora’s Box’: Trump Lawyer
Trump attorney Mr. Sauer argued that charging a president for his official conduct opens a “pandora’s box” for which this nation “may never recover.”
Judge Florence Pan asked whether a president could sell government secrets and avoid prosecution. She also asks whether a president can order SEAL Team Six to assassinate a political rival.
Mr. Sauer contended that a president should be impeached and convicted by Congress. The founders, he said, were worried about the abuse of the criminal process for political purposes. “That’s exactly what we see in this case,” he adds.
Mr. Sauer clarified that a president could be subject to criminal prosecution after impeachment and conviction by the Senate.
Appeals Hearing Begins
The Appeals Court hearing commenced with Trump attorney John Sauer defending the court’s jurisdiction to hear the appeal. An amicus brief had challenged this point.
The special counsel’s office is represented by James Pearce.
Trump Arrives
President Trump has entered courtroom at the E. Barrett Prettyman federal courthouse in Washington just before oral argument is set to comment.
Jack Smith Arrives
Special Counsel Jack Smith has arrived at the E. Barrett Prettyman courthouse in Washingron ahead of the appellate hearing in President Trump’s D.C. case.
Trump to Attend Appeals Court Hearing on Presidential Immunity Claim
A three-judge panel is set to hear former President Donald Trump’s appeal of a lower court decision rejecting claims that some of his actions on Jan. 6, 2021, were protected by presidential immunity.
Scheduled for Jan. 9, it’s the second major appeal of the Justice Department’s (DOJ) prosecution of President Trump in D.C. The former president will make an appearance at the hearing.
President Trump confirmed on Jan. 8 that he would attend, stating, “Of course, I was entitled, as President of the United States and Commander in Chief, to Immunity. I wasn’t campaigning, the Election was long over.” (Read Full Article)
