Trump’s appeals hearing on presidential immunity claims

James Pearce, an attorney arguing on behalf of the Department of Justice's special counsel’s office, speaks before the DC Circuit Court of Appeals at the federal courthouse on Tuesday, January 9, in Washington, DC.

A federal appeals panel expressed deep skepticism Tuesday toward Donald Trump’s argument that he can’t be prosecuted for trying to overturn the 2020 election, raising the potentially extreme implications of absolute presidential immunity.

Trump’s lawyers argued that his federal election subversion indictment should be dismissed because he is immune from prosecution. But the three judges on the US Court of Appeals for the District of Columbia Circuit panel questioned whether this immunity theory championed by Trump’s lawyers would allow presidents to sell pardons or even assassinate political opponents.

Special counsel Jack Smith’s team argued that a president is not above the law, warning that allowing presidential immunity from prosecution would open a “floodgate” and saying that it would be “awfully scary” if there were no criminal mechanism to stop future president’s from usurping the vote and remaining in power.

Still, the judges also wondered if they even have jurisdiction to decide the question of presidential immunity at this point in the case. Trump is scheduled to go on trial in March for his role in trying to overturn the 2020 election. He has pleaded not guilty. Trump chose to attend the hearing – a reminder of the role that his four criminal indictments are playing in his presidential campaign.

The appeals court ruling is likely to set up a showdown over presidential immunity at the Supreme Court. The judges have not set a deadline but given the circumstances it’s unlikely they will take too much time.

Here are key takeaways from Tuesday’s oral arguments:

Judges worry about scope and impact of Trump’s immunity argument: The Circuit Court judges asked pointed questions of Trump attorney John Sauer over his claims that Trump has immunity because his actions after losing the 2020 election were part of his presidential duties. The judges also challenged him on his claim that Trump could only face criminal prosecution if he was first impeached and convicted by Congress for the same conduct. DC Circuit Court Judge Karen Henderson, an appointee of President George H.W. Bush, appeared dubious that Trump was acting within his official duties. “I think it is paradoxical to say that his constitutional duty to take care of the laws be faithfully executed allows him to violate criminal law,” Henderson said. Some of the judges pushed back on Trump’s immunity claims by highlighting the potentially dangerous path that it could lead to, with future presidents being able to brazenly break the law without consequences.

Key debate over whether Trump’s impeachment prevents prosecution: Trump’s attorney Sauer argued that a president can only be criminally charged and tried following a conviction for the alleged actions in the Senate. He had been acquitted by the Senate in February 2021. Judge Florence Pan, a President Joe Biden nominee, questioned Sauer over his contention that impeachment and conviction by Congress was required for any criminal prosecution – while also pressing him to acknowledge that he was conceding that there is a path for presidents to face prosecution. “Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away, and the issues before us are narrowed to are you correct in your interpretation of the impeachment judgment clause?” Pan said.

Trump lawyer says immunity keeps shut ‘Pandora’s box’ for indicting presidents: Sauer painted a picture of what he called a dangerous “Pandora’s box” of indicting former presidents for actions they took while in office. He argued that special counsel Smith’s decision to bring charges against Trump could lead to similar prosecutions. He warned that this case could theoretically lead to charges against Biden, Barack Obama or George W. Bush. “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.

Read more key takeaways.

The DC Circuit Court of Appeals heard arguments today on whether the federal 2020 election subversion case against Donald Trump should be dismissed based on the former president’s claims of immunity.  

There were no cameras in court, but courtroom sketch artist Bill Hennessy captured the scene with pencil and paper.

These sketches from court depict former President Donald Trump, seated right, listening as his attorney John Sauer, standing, speaks before the DC Circuit Court of Appeals at the federal courthouse on Tuesday, January 9, in Washington, DC.

Former President Donald Trump listens as his attorney D. John Sauer, not pictured, speaks.

John Sauer argued on behalf of Trump. The three judges on the panel are J. Michelle Childs, Florence Pan and Karen LeCraft Henderson.

Special Counsel for the Justice Department Jack Smith.

Walt Nauta, Trump's aide.

Former President Donald Trump speaks to the media on Tuesday in Washington, DC.

Former President Donald Trump continued to argue he should have presidential immunity after he attended a federal appeals court hearing in Washington, DC.

“You can’t have a president without immunity,” he added. “You have to have, as a president, you have to be able to do your job.”

Trump also mirrored arguments that his lawyers made about in court, saying that his prosecution “opens Pandora’s box.”

The location of where Trump made his post-hearing remarks is notable: The Waldorf Astoria Washington DC occupies the Old Post Office building, where the Trump Organization had operated a luxury hotel for several years, including during his four years in the Oval Office. His company completed a sale on its lease of the property in 2022.

The packed courtroom in Washington, DC, fell silent at around 9:25 a.m. ET when former President Donald Trump entered. He wore his standard navy blue suit and red tie. His entourage included adviser and lawyer Boris Epshteyn and Walt Nauta, his co-defendant in the classified documents case pending in federal court in southern Florida. 

Special counsel Jack Smith entered the room about 25 minutes before Trump arrived. He was flanked by more than a dozen members of his team. Smith walked a few rows back to talk to the parents of James Pearce, a lawyer arguing for the government. 

The room, ringed with portraits of previous members of this appeals court, rose when the three judges hearing this case entered. 

Trump rose along with everyone and appeared mostly subdued for much of the day’s arguments. 

The former president leaned forward at times; seemingly to better hear judge Karen LeCraft Henderson, a George H.W. Bush appointee, who spoke softly, and occasionally spoke to one of his attorneys. 

He was much more active when Pearce began making his presentation. He began taking notes on a yellow pad and occasionally passing his notes to his attorney John Sauer. 

The former president appeared to purse his lips and looked ahead when one of the judges cited Trump claims from the congressional record. He wrote notes and passed them along. 

It’s unclear if Sauer used any of Trump’s notes, but near the end of the hearing, Sauer noted that all allegations against the president related to activity while he was in office. Sauer motioned toward his client and Trump nodded. 

As the proceeding ended, Trump rose, looked around the room briefly and then slowly walked out. 

Unlike previous court hearings it didn’t appear Trump and Smith looked at each other. 

Remember: There were no cameras inside the federal courtroom but a live audio feed of the hearing was broadcast. CNN’s reporters were inside the room providing updates on the proceedings.

Judge Karen LeCraft Henderson, of the U.S. Court of Appeals for the District of Columbia Circuit. 

As the longest serving jurist on this panel, and the sole Republican appointee among these three, what senior Judge Karen Henderson does in this case will be closely watched and a signal to many other judges that could also be asked to consider these issues, including the Supreme Court.

Henderson was skeptical that Donald Trump was acting within his official duties when he tried to overturn the 2020 presidential election results, saying that Trump attorney John Sauer’s arguments appear “paradoxical.”

Henderson had several cases about the American presidency before her, and she’s written extensively about the presidency and how courts should think about protections around it.

She’s even been on an appeals court panel for a previous Trump case, when he challenged Congress’ ability to receive his tax returns from the IRS after he left office. Henderson at that case’s oral arguments had, surprisingly, asked if there should have been special consideration if Trump ran for office again — which he is now doing. (His tax returns were ultimately released, following the courts’ approval.)

But in a concurring opinion that Congress could get Trump’s tax returns, Henderson pointed out she believed “the burdens borne by the Executive Branch are more severe and warrant much closer scrutiny” than what others on the panel said at that time.

Henderson also previously had to consider immunity around the presidency, when she sat on the DC Circuit panel regarding a congressional subpoena of Trump’s then-White House counsel Don McGahn. She wrote at that time that McGahn couldn’t avoid responding to his subpoena entirely by claiming absolute immunity around the presidency, but could invoke some protections around the presidency to limit what he would have to say to Congress.

She noted in her concurring opinion in that case that criminal investigations could reach further into the bubble around the presidency because of grand jury’s needs, and that lawsuits against sitting presidents for their unofficial acts couldn’t be dodged with a temporary presidential immunity claim.

John Sauer listens during a hearing on Capitol Hill in July 2023.

Trump’s attorney John Sauer said at the end of the hearing Tuesday that a former president could be prosecuted for “official acts” if they were first convicted by the Senate during impeachment proceedings.

The former president has repeatedly asserted that challenging the outcome of the presidential election fell under his duties as president he cannot be prosecuted for any official acts he took.

He added, however, that he believes there are “all kinds of other legal doctrines that are violated in this case.”

Former President Donald Trump speaks at the Faith and Freedom Road to Majority conference at the Washington Hilton on June 24, 2023 in Washington, DC. 

Most Americans don’t believe that former president Donald Trump should be immune from prosecution for his actions during his presidency, a recent survey shows.  

In a January CBS News/YouGov poll, US adults say, 64% to 36%, that Trump should not have immunity from criminal prosecution for actions he took while president. Both an 86% majority of Democrats and about two-thirds of independents say Trump should not have immunity, while 69% of Republicans say that he should.  

In the same survey, a slimmer 53% majority of Americans say they view the indictments against Trump as “upholding the rule of law,” with an identical 53% dismissing the idea that they constitute “an unfair attempt to stop Trump’s 2024 campaign.”

About two-thirds of Americans say they’ve heard or read at least some news relating to the indictment charges brought against Trump relating to January 6th and the 2020 presidential election, with just 31% saying they’ve heard or read a lot about it. 

In a December poll from the Washington Post and the University of Maryland, 57% of Americans said that the Justice Department was “holding Trump under the law like anyone else” by charging him with criminal conspiracy to defraud the United States, with 41% saying the Justice Department was “unfairly targeting Trump for political reasons.” Just 4% of voters who supported Joe Biden in 2020 viewed the charges as unfairly politicized, while a slightly larger 16% of 2020 Trump voters viewed the charges as providing accountability. 

In a CNN survey taken last summer, 47% of Americans said that Trump was facing so many criminal charges largely as a result of his own actions, with a smaller 31% saying those charges were largely a result of political abuse of the justice system, and the remainder demurring.  

Police stand guard at federal court house in Washington, DC, on Tuesday, January 9.

The landmark hearing over whether former President Donald Trump is immune from prosecution by special counsel Jack Smith has ended after roughly 75 minutes.

Assistant special counsel James Pearce pushed back on Donald Trump’s argument that prosecuting a former president would open a “floodgate” of counter-charges against political opponents, saying that it would be “awfully scary” if there were no criminal mechanism to stop future president’s from usurping the vote and remaining in power.

That the special counsel’s investigation resulted in criminal charges “doesn’t reflect that we are going to see a sea change of vindictive tit-for-tat prosecutions in the future,” Pearce said. “I think it reflects the fundamentally unprecedented nature of the criminal charges here.”

“And frankly if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that — criminally.”

Sen. Mitch McConnell arrives to a news conference after a lunch meeting with Senate Republicans Capitol in July 2023.

As the court debates whether former President Donald Trump is immune from prosecution, the issue of his two impeachments has taken center stage.

When announcing his vote against convicting Trump of inciting an insurrection in 2021, Senate Minority Leader Mitch McConnell, a Kentucky Republican, pointed to the justice system’s responsibility on the matter. 

Read more here.

Florence Pan speaks to judicial nominees during a Senate Judiciary Hearing on Capitol Hill in 2021.

Judge Florence Pan challenged Trump lawyer John Sauer over the importance of granting Trump immunity over “other public interests,” saying that the former president’s arguments are “not fully aligned with the institutional interests of the executive branch.”

Judges are supposed to “conduct a balancing test,” Pan said, “where we balance the need for the asserted immunity versus other public interests. I see you as trying to represent a need for the executive to have this immunity to facilitate executive functions — the ability to act without hesitation, to be fearless to make decisions without being inhibited by the fear of prosecution.”

But, Pan said, there are other “countervailing” interests. Pan said that under the Article Two of the Constitution, “there is an interest of the executive branch as an institution — to have constitutional executive power vested in a newly elected president.”

There is also an executive interest “in law enforcement and enforcing criminal laws,” she said.

Courtroom in the historic E. Barrett Prettyman Federal Courthouse.

Assistant special counsel James Pearce has begun his arguments before the appeals court, urging the panel of judges to deny former President Donald Trump presidential immunity from prosecution.

“Never in our nation’s history until this case has a president claimed that immunity from criminal prosecution extends beyond his time in office,” Pearce told the court.

Pearce is expected to argue for at least 20 minutes.

Judge Karen LeCraft Henderson, of the U.S. Court of Appeals for the District of Columbia Circuit.

Appeals court Judge Karen Henderson appeared skeptical that Donald Trump was acting within his official duties when he tried to overturn the 2020 presidential election results, saying that Trump attorney John Sauer’s arguments appear “paradoxical.”

Henderson, the most senior judge on the appeals court panel hearing the Trump case, has previously heard several cases involving Trump and repeatedly expressed concerns about safeguarding the special protections around the presidency in her previous opinions.

She was appointed by President George H.W. Bush.

Earlier, under questioning from Judge Michelle Childs, Sauer said that anything Trump tweeted should be considered as an official act as president.

Several of Trump’s tweets around the 2020 election and on January 6 were used by the special counsel’s team in their indictment against the former president. Smith alleged that his posts were part of a wide-ranging effort to overturn the results of the presidential election and remain in office.

An appeals court has previously held that “based on overwhelming evidence, that…his Twitter account during the presidency was an official channel of government communication,” Sauer said, adding that “all those tweets are obviously immune.” 

Courtroom in the historic E. Barrett Prettyman Federal Courthouse.

The appeals judges have picked up on how Donald Trump previously argued in ways that are contradictory to what they say today, including when he faced a criminal investigation in Manhattan and a pending impeachment proceeding.

One of the judges pointed out that his team had argued former office-holders wouldn’t be immune.

At that time, Trump’s attorneys were trying to hold off impeachment, so they were arguing Trump could faced charges after he left office, but shouldn’t have faced an impeachment trial while he was in office.

In 2020, a lawyer for Trump told the Supreme Court “we’re asking for temporary presidential immunity.” 

Florence Pan appears before the Senate Judiciary Committee on Capitol Hill in June 2022.

US Circuit Court Judge Florence Pan expressed skepticism toward the argument from Donald Trump attorney John Sauer that presidents have “absolute immunity” from prosecution for official actions taken as president.

Pan pushed Sauer on the absolute immunity question after Trump’s attorney acknowledged that presidents who were impeached and convicted were then subject to criminal prosecution for that action.

Pan responded by saying that showed there was a method for presidents to be prosecuted for their official actions.

Sauer said that he disagreed, arguing the Constitution’s separation of powers included Congress in the process because of concerns about politically motivated prosecutions.

“They set up the separation of powers and then created a very narrow exception that would allow prosecution in those cases,” Sauer said.

In this July 2023 photo D. John Sauer testifies during a hearing on Capitol Hill.

Trump attorney John Sauer suggested during Tuesday’s hearing that President Joe Biden could be prosecuted for “mismanaging the border” if the appeals courts doesn’t establish a doctrine of criminal immunity for presidents.

More context: Some congressional Republicans have floated the idea of impeaching Biden over border policy issues, but Sauer’s suggestion takes things a step further by bringing up a specific venue.

Federal courts in Texas have been a favored venue among conservative litigants looking to challenge Biden and his administration’s policies because of the number of judges in the state that have been appointed by Republican presidents — including Trump.

Those cases are usually appealed up to the 5th US Circuit Court of Appeals — the nation’s most conservative appeals court — which has a history of issuing controversial rulings, some of which impact the entire nation.

In this 2022 photo, Florence Pan appears before the Senate Judiciary Committee on Capitol Hill in Washington, DC.

Trump lawyer John Sauer said Tuesday that a president who ordered the military to assassinate a political rival or sold pardons to criminals could only be criminally prosecuted if they are first impeached and convicted by Congress.

Appeals court Judge Florence Pan, a nominee of President Joe Biden, posed the hypothetical questions to flesh out the bounds of Sauer’s immunity argument.

Broadly, his argument relies on the theory that presidents are shielded from prosecution for official actions if there isn’t an impeachment conviction first.

“Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six,”

Pan said “He would have to be, and would speedily be impeached and convicted before the criminal prosecution,” Sauer said. “I asked you a yes or no question,” Pan said.

“If he were impeached and convicted first,” Sauer replied.

“So your answer is no,” Pan said.

Sauer responded, “My answer is qualified yes. There is a political process that would have to occur.”

President Richard Nixon announces his resignation on television in Washington, DC.

Two Supreme Court cases involving former President Richard Nixon are being tossed around quite a bit during Tuesday’s hearing, as both sides point to the pair of immunity disputes decided by the high court decades ago to bolster their arguments in the latest immunity controversy. 

Former President Donald Trump’s team has pointed to a 1982 Supreme Court case involving Nixon in which a 5-4 court said the then-former president was “entitled to absolute immunity from damages liability predicated on his official acts.” 

The decision handed a win to Nixon, who was trying to fend off a civil lawsuit brought against him and two White House aides by a former Defense Department whistleblower who claimed his ousting was in retaliation for damning congressional testimony about government cost overruns. 

More than 40 years later, Trump’s team is citing the ruling, authored by Justice Lewis Powell, to reinforce their argument that he should be shielded from criminal prosecution. 

“The President’s ‘unique position in the constitutional scheme,’ … guarantees him immunity from trial,” they wrote. 

But the special counsel’s team pushed back strongly on those arguments, writing in their own brief that the court’s decision in the Nixon civil matter “does not render a former President immune from criminal liability when charged with violations of generally applicable federal criminal statutes.” 

The other immunity case expected to get a lot of play during the hearing, US v. Nixon, is likely more familiar to the general public. In that case, the Supreme Court in 1974 unanimously rejected Nixon’s claims of presidential privilege in a subpoena fight over Oval Office tapes sought by prosecutors in one of the Watergate-era criminal cases.   

“Judicial review of Presidential compliance with the law continues to the present,” special counsel Jack Smith’s teams told the appeals court, citing the 1974 case. “And significantly here, courts have conclusively rejected Presidential claims of unreviewable power to resist criminal process.” 

D. John Sauer listens as he testifies during a hearing on Capitol Hill in Washington, DC, on in July 2023.

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.

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.

Republican presidential candidate and former President Donald Trump looks on during a campaign event on December 19, 2023 in Waterloo, Iowa.

The appeals court hearing on former President Donald Trump’s immunity claims started with a slight detour to discuss the question of whether the court should even be hearing the case.

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.