On Tuesday, former President Donald Trump’s attorneys tried to convince a panel of the U.S. Court of Appeals for the District of Columbia Circuit that their client is entitled to “absolute immunity” from criminal prosecution for the actions he took while in office related to Jan. 6 and his efforts to steal the 2020 election. Their argument? That Trump was president, so it doesn’t matter. The three judges did not seem impressed. They are poised to rule against Trump, which could free special counsel Jack Smith’s prosecution of Trump from a temporary hold. The effort is the most important legal challenge to Smith’s case.
If the D.C. Circuit rules speedily enough and directs the case back to Judge Tanya Chutkan’s courtroom, then the Jan. 6 criminal trial against Trump can resume relatively close to its initial schedule of a spring trial date. That is, unless the Supreme Court steps in, which will add additional delay. Even in that instance, though, the high court can—as it has already done on the question of Trump’s qualification for the 2024 presidential ballot—move on an expedited basis to allow the trial to go forward well in advance of November’s election. With candidate Trump having already telegraphed his intention to use a return to office to claim the powers of a “dictator,” it’s no exaggeration to say that these cases could determine whether constitutional democracy as the United States has known it lives or dies.
During Tuesday’s arguments, the D.C. Circuit panel consistently pointed to the horrific implications of Trump’s immunity argument. If Trump’s argument holds, that also means that a president could take bribes to issue pardons, sell military secrets to America’s enemies, or order a military assassination of a political rival and never face prosecution—just so long as he left office before being impeached and convicted.
As Judge Karen L. Henderson, a Republican appointee who has sided with Trump allies in previous cases involving the former president, put it: “I think it’s paradoxical to say that [a president’s] constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws.” [Continue reading…]