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Federal appeals court judges on Tuesday were skeptical of former President Donald Trump’s claim of absolute presidential immunity from charges that he conspired against the U.S. in an attempt to overturn the 2020 election, a case with huge implications for his landmark prosecution and status as the front-runner for the Republican Party nomination.
With Mr. Trump watching from the gallery, the three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia questioned attorney Dean John Sauer’s claim that the nation’s founders thought a president would have to be impeached and convicted by Congress before facing criminal prosecution.
Mr. Sauer, a former Missouri solicitor general representing Mr. Trump, said presidential worries about prosecution by a successive administration would set a terrible precedent. He pointed to President George W. Bush’s actions before the Iraq invasion, President Obama’s drone strikes and President Biden’s handling of the southern border.
Judge Florence Y. Pan, a Biden appointee, wondered whether a president could be prosecuted, for instance, for directing Navy SEAL Team 6 to assassinate a political rival.
Mr. Sauer suggested that a president must first be impeached and convicted in Congress, or “there is a political process that would have to occur.”
SEE ALSO: Trump says Obama, future presidents at risk if courts don’t grant criminal immunity
The judges said Mr. Trump’s defense undermined its argument of absolute immunity by conceding that a president could be prosecuted after an impeachment. They also wondered whether they should decide the issue or return it to the trial court, which ruled against Mr. Trump.
“Once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away,” Judge Pan said.
The outcome of the hearing could determine whether Mr. Trump stands trial under an indictment alleging he conspired against the U.S. and its voters by trying to overturn the 2020 election results through fake electors and a pressure campaign on state officials. It is one of two federal indictments secured by special counsel Jack Smith and one of four criminal indictments overall leveled against Mr. Trump.
After the hearing, Mr. Trump said his efforts to look for voter fraud were protected actions as head of the executive branch rather than a candidacy-related effort to secure a victory and a second term. He said the Biden administration is using the courts to conduct a hit job against his 2024 presidential bid.
“They’re losing in every poll, they are losing in almost every demographic,” Mr. Trump told reporters in Washington. “I think they feel this is the way they’re going to try and win.”
The judges questioned whether looking for voter fraud as a member of the executive branch shielded Mr. Trump.
“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 L. Henderson, an appointee of President George H.W. Bush.
The judges said some U.S. senators appeared to rely on the prospect of criminal prosecution when they voted to acquit Mr. Trump of impeachment charges.
Senate Minority Leader Mitch McConnell, a Kentucky Republican who voted to acquit Mr. Trump of liability in the Jan. 6, 2021, attack on the U.S. Capitol, gave a floor speech in February 2021 suggesting that the courts could prosecute the former president.
“President Trump is still liable for everything he did while in office,” Mr. McConnell said. “He didn’t get away with anything yet. We have a criminal justice system in this country. We have civil litigation.”
James Pearce, a government attorney for Mr. Smith, said in court that presidents do not have sweeping immunity from criminal prosecution. He said applying immunity to Mr. Trump after he challenged the peaceful transfer of power would set a terrible precedent.
“The president has a unique constitutional role, but he is not above the law,” Mr. Pearce said.
Mr. Trump was not required to attend the proceedings Tuesday, but he is using numerous court appearances to rally supporters during his campaign. He faces a civil judgment in New York and four criminal trials as he campaigns for president as the Republican front-runner.
The Iowa caucuses on Monday will kick off the primary election season.
No matter how the circuit court rules, the losing side will likely seek redress from the Supreme Court. The justices do not have to take up the case and could leave the circuit court ruling in place.
The pending decision means Mr. Trump’s trial might start later than its scheduled date in early March. The Super Tuesday primaries in several states are scheduled for March 5. Mr. Trump has suggested that he would turn the tables on Mr. Biden if he wins in November.
He said on social media that Mr. Biden “opened a giant Pandora’s Box” through the Department of Justice that would result in cycles of political prosecutions and force presidents to second-guess their actions.
“You really can’t put a president in that position. A president has to have immunity,” Mr. Trump said. “I did nothing wrong, we did nothing wrong.”
In court, Mr. Pearce downplayed the idea that prosecuting Mr. Trump would open the floodgates to tit-for-tat prosecutions.
“I think it reflects the fundamentally unprecedented nature of the criminal charges here,” said Mr. Pearce, adding that no other president had used the levers of power to “fundamentally subvert” an electoral outcome. “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.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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