Updated Jan 9, 2024 - Politics & Policy

"It's paradoxical": Judges voice skepticism at Trump lawyer's immunity claims

Republican presidential candidate former President Donald Trump speaks to guests during a rally at Clinton Middle School on January 06, 2024 in Clinton, Iowa.

Former President Trump speaks to guests during a rally at Clinton Middle School on Jan. 6 in Clinton, Iowa. Photo: Scott Olson/Getty Images

A three-judge panel appeared skeptical on Tuesday of President Trump's legal team's argument that he has presidential immunity in his federal 2020 election interference case.

Why it matters: The election interference trial, originally slated to begin on March 4, has been paused as Trump's appeal goes through the courts.

Driving the news: With Trump in attendance, his lawyers argued Tuesday that he was acting in his official duty as president when he challenged the 2020 election results, thus protecting him from criminal prosecution — a claim that drew some skepticism from the judges.

  • "I think it's paradoxical to say that his constitutional duty to 'take care that the laws be faithfully executed' allows him to violate criminal law," said Judge Karen Henderson, a George H.W. Bush appointee.

John Sauer, a lawyer for Trump, also argued that presidents are immune from criminal prosecution unless they are first impeached and convicted by the Senate.

  • "Could a president order SEAL Team 6 to assassinate a political rival?" Judge Florence Pan asked.
  • "He would have to be and would speedily be impeached and convicted before the criminal prosecution," Sauer responded.

The other side: James Pearce, a lawyer for special counsel Jack Smith, argued that impeachment and criminal prosecution should play out as distinct processes.

  • "I think there is a political process, which is impeachment, and we can talk about that, but there is a legal process which is decidedly not political," he said.

Pearce also rejected questioning from the judges that a ruling against immunity could open the "floodgates" of future politically motivated charges against presidents.

  • "The fact that this investigation [resulted in 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."

What they're saying: In remarks after the hearing, Trump said that he thinks his team's arguments went "very well" and repeatedly said that a "president has to have immunity."

  • "I think it's very unfair when a political opponent is prosecuted by the DOJ, by Biden's DOJ," he said.
  • Echoing the comments made by his attorneys in the courtroom, Trump argued that a president needs immunity to do their job.

Catch up quick: Special counsel Jack Smith sought to throw the question of presidential immunity to the Supreme Court last month, asking the high court to speedily weigh in on Trump's argument.

Zoom in: Smith, who has sought to keep the March 4 trial start date on track, sought intervention from the Supreme Court in an attempt to bypass what could be a lengthy appeals court process.

  • The former president's legal team has repeatedly tried to delay proceedings across his four criminal indictments and numerous other legal challenges until after the 2024 election.

What to watch: The judges appeared divided over what the scope of an eventual decision may be.

  • However broad or narrow their eventual ruling is, the losing party is likely to appeal to the Supreme Court, Politico notes.

Go deeper: Trump's courtroom and campaign calendar collision is here

Editor's note: This story has been updated with additional details throughout.

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