Trump's lawyer: Letting charges go forward would open a "Pandoras's box" to prosecuting political enemies
From CNN's Hannah Rabinowitz
D. John Sauer listens as he testifies during a hearing on Capitol Hill in Washington, DC, on in July 2023. Jim Watson/AFP/Getty Images
John Sauer, an attorney representing Donald Trump, kicked off Tuesday’s hearing by arguing that prosecuting a former president would “open a Pandora's box.”
“To authorize the prosecution of a president for his official acts would open up Pandora’s box from which this nation may never recover,” Sauer said.
“Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress, to induce the nation to go to war in Iraq under false pretenses?” Sauer asked.
“Could President Obama be potentially charged for murder for allegedly authorizing drone strikes targeting US citizens located abroad?" he added.
Sauer is expected to speak for 20 minutes. He’ll have a short amount of time later Tuesday to offer a rebuttal to the government’s arguments.
9:49 a.m. ET, January 9, 2024
First topic of the hearing: Should we even be here now?
From CNN's Holmes Lybrand
Republican presidential candidate and former President Donald Trump looks on during a campaign event on December 19, 2023 in Waterloo, Iowa. Scott Olson/Getty Images
In a brief filed in the appeals case, the watchdog group American Oversight argued the DC District Court doesn’t have jurisdiction to take up Trump’s immunity appeal before trial. The group says that unless there is an explicit constitutional or statutory guarantee cited that would stop a trial from occurring, the issue should be left for appeal until after the trial.
American Oversight argued that the only two constitutional provisions that would stop a trial from occurring are in the Speech or Debate clause and the Double Jeopardy clause, neither of which are being relied upon by Trump in his appeal of presidential immunity, according to the group.
Instead, Trump cites the Impeachment Judgement clause to argue that because Trump was acquitted by the Senate of causing an insurrection, he shouldn’t be allowed to be again prosecuted by special counsel Jack Smith.
American Oversight, in their brief, argues that this is different from the Double Jeopardy clause in the Constitution, which prohibits individuals from being prosecuted twice for the same crime, the Impeachment Judgement clause never explicitly states a “guarantee that trial will not occur.”
Trump attorney John Sauer told the court that presidential immunity is an issue that should be addressed now, so Trump wouldn't be deprived of protections he may have as a defendant from sitting for trial.
9:33 a.m. ET, January 9, 2024
Court is now in session
From CNN's Dan Berman
The federal appeals court hearing that could go a long way to determining former President Donald Trump's political and legal future has begun.
John Sauer will be arguing on behalf of the former president that he is immune from prosecution for his actions following the 2020 election.
James Pearce will argue on behalf of the special counsel's office.
9:28 a.m. ET, January 9, 2024
Trump arrives at federal courthouse for hearing
From CNN's Dan Berman
The motorcade of former President Donald Trump arrives for a hearing on Trump's claim of immunity in the federal case accusing him of illegally attempting to overturn his 2020 election defeat, at U.S. District Court in Washington, DC, on Tuesday. Nathan Howard/Reuters
Former President Donald Trump has arrived at the E. Barrett Prettyman federal courthouse in Washington, DC, before the high-stakes hearing on immunity.
His motorcade drove directly into the garage and we do not expect to see Trump before the hearing begins.
9:19 a.m. ET, January 9, 2024
One floor above Trump's hearing, 100 people will be sworn in as US citizens and register to vote
From CNN's Hannah Rabinowitz
More than 100 people from around the world are set to be sworn in as American citizens Tuesday morning in the same courthouse where former President Donald Trump’s lawyers will argue that he has immunity from prosecution.
The naturalization ceremony will take place just one floor above the courtroom where Trump and his attorneys will be and is set to begin at the same time as Trump’s hearing.
Nearly every seat the room where the ceremony is to take place — which is the largest room in the courthouse — is full. Inside, friends and family are excitedly huddled around those preparing to take a citizenship oath, some of whom are carrying small American flags.
Volunteers from the League of Women Voters are stationed outside the ceremony to help the newly sworn-in citizens register to vote in the 2024 presidential election.
9:14 a.m. ET, January 9, 2024
Special counsel team arrives in courtroom
From CNN's Holmes Lybrand
Special counsel Jack Smith and his prosecutors have arrived at the appeals hearing over whether former President Donald Trump is immune from prosecution.
The attorney arguing on behalf of the special counsel, James Pearce, will have 20 minutes to make his case in front of the three-judge panel as to why Trump should not be immune for prosecution for his actions following the 2020 election.
Smith has argued that such immunity would threaten “the democratic and constitutional foundation of our Republic.”
9:31 a.m. ET, January 9, 2024
Trump’s federal immunity appeals hearing is starting soon in Washington, DC. Here's what to know
From CNN's Jeremy Herb, Holmes Lybrand, Hannah Rabinowitz and Devan Cole
The Washington Metropolitan police set up barricades, before the arrival of former US President Donald Trump, near the federal courthouse in Washington, DC, on Tuesday. Andrew Caballero-Reynolds/AFP/Getty Images
A federal appeals court is hearing arguments Tuesday over whether Donald Trump is immune from prosecution for actions he took after the 2020 election, one of the key questions that could determine the former president’s legal and political fate in 2024.
Trump is attend the oral arguments in the US Circuit Court of Appeals for the District of Columbia Circuit where a three-judge panel will decide whether the federal charges brought against him by special counsel Jack Smith should be dismissed based on Trump’s claims of immunity.
Trump’s presence at the 9:30 a.m. ET hearing Tuesday – less than week before the Iowa caucuses – underscores how intertwined Trump’s legal and political worlds have become, as the former president has made the four criminal indictments against him a key part of his pitch to his supporters in the 2024 campaign.
The immunity question is ultimately expected to end up before the Supreme Court, one of several consequential questions the high court will take up related to Trump this year. On Friday, the US Supreme Court said it would review next month the Colorado Supreme Court’s unprecedented decision to remove Trump from its state ballot.
Trump faces four counts from Smith’s election subversion charges, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.
Here’s what to know for Tuesday’s arguments:
A key question for Trump’s legal peril: District Judge Tanya Chutkan has declined to dismiss the election subversion charges against Trump, ruling that he does not have absolute immunity for what he said and did after the 2020 election.
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” Chutkan wrote. “Former Presidents enjoy no special conditions on their federal criminal liability.”
Trump appealed that decision to the appeals court. Trump’s attorneys have argued that his actions trying to overturn the 2020 election fell within his duties as president because Trump was working to “ensure election integrity” as part of his official capacity as president, and therefore he is immune from criminal prosecution.
What we know about the 3 judges who will weigh Trump’s immunity request
From CNN’s Holmes Lybrand, Hannah Rabinowitz, Devan Cole
Judge Karen LeCraft Henderson, of the US Court of Appeals for the District of Columbia Circuit. From Diego M. Radzinschi/ALM
The Washington, DC, Circuit Court of Appeals will hear oral arguments soon on whether the federal election subversion case against Donald Trump should be dismissed based on the former president’s claims of immunity.
Trump’s attorneys have argued that his actions following the 2020 election fell within his duties as president and are therefore immune from criminal prosecution
During the hearing, Trump’s attorneys will have 20 minutes to make their case to the panel of appeals judges. The special counsel’s office will then have 20 minutes, followed by a five-minute rebuttal argument from Trump’s team. The judges can ask questions during each sides' arguments.
This 2022 photo shows J. Michelle Childs testifying during her Senate Judiciary Committee confirmation hearing in Washington, DC. Tom Williams/CQ Roll Call/Getty Images
These are the three judges on the panel hearing the case:
J. Michelle Childs: Childs was nominated to the appeals court by President Joe Biden in January 2022 and took the bench that July. She was on Biden’s shortlist to replace outgoing Supreme Court Justice Stephen Breyer, but he ultimately picked Ketanji Brown Jackson. Before joining the appeals court, Childs was a federal judge in North Carolina since 2010.
Florence Pan: Pan was nominated to the appeals court by Biden in May 2022 to fill the seat vacated by Jackson after she was confirmed to the Supreme Court. Previously, Pan served as a judge for the Superior and District courts in DC for more than 10 years.
Karen LeCraft Henderson: Henderson is the senior judge on the appeals court panel hearing the Trump case. She was appointed by President George H.W. Bush in 1990. Henderson has previously heard several cases involving Trump, including whether Congress could access his tax records and whether the House could enforce a subpoena on former Trump White House Counsel, Don McGahn. She has repeatedly expressed concerns about safeguarding the special protections around the presidency in her previous opinions.
This 2021 photo shows Florence Y. Pan during a Senate Judiciary Hearing on Capitol Hill in Washington, DC. Amanda Andrade-Rhoades/AP
What happens after this hearing: Once Tuesday’s hearing concludes in the federal election subversion case, the panel of appeals judges could issue a written ruling at any time. They will not rule from the bench.
Their order can, and likely will, be appealed further to the US Supreme Court. Late last year, special counsel Jack Smith took the extraordinary and unusual step to ask the court to skip the appeals courts and fast-track the issue of presidential immunity, but the justices denied that request.
Either side could also ask for the case to be reheard by the DC Court of Appeals after the ruling.
The issue of presidential immunity will likely need to be decided before Trump goes to trial, which is currently scheduled to begin in March. District Judge Tanya Chutkan, who is overseeing the criminal election subversion case, has paused all deadlines in the case until the appeals play out, which could push back the trial date.
8:30 a.m. ET, January 9, 2024
Analysis: Trump’s immunity appeal sends a stark message about his plans for a possible second term
From CNN's Stephen Collinson
The idea that any White House candidate would show up in court, just days before the Iowa caucuses, to challenge a 250-year understanding of the scope of the presidency is extraordinary.
But Donald Trump will again try to stretch those powers to save himself on Tuesday in a high-stakes court gambit that, if it succeeds, would place him and anyone else elected president above the law.
Given the 45th president’s oft-stated belief that he had near omnipotent powers when he was in office – and that he still might be entitled to them – the history-making spectacle about to unfold is not that surprising. The front-runner for the GOP nomination says he will be in the US Court of Appeals for the District of Columbia Circuit to watch his lawyers argue that he has “absolute immunity” from prosecution in his federal 2020 election interference case.
The case, and a looming trial, springs from Trump’s efforts to thwart the will of voters after he lost the 2020 election to Joe Biden. But with its proximity to Monday’s Iowa caucuses, which kick off 2024 voting, the case represents an ominous foreshadowing of how Trump envisages a possible second term. The former commander in chief has already warned that a possible return to the White House would be dedicated to “retribution,” which would likely test constitutional constraints as never before.
Trump on Monday made similar immunity claims in Georgia, where he’s trying to dismiss the state-level criminal charges against him, which stem from his efforts to subvert the election in the swing state.
If he were able to establish in the courts, albeit in a long-shot case, that an ex-president is free from prosecution for alleged crimes he committed while in power, he could not only loosen the constitutional guardrails around the office if he wins in November. He could change the way presidents act in the future – and the extent to which any autocratic instincts can be held in check.
