Trump Seeks Immunity for Jan. 6 Charges

(Bloomberg) -- Donald Trump’s lawyers will spar with federal prosecutors Tuesday in a high-stakes court battle to determine if he is immune from charges of trying to overturn the 2020 election because he was president at the time.

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The two sides are set to make oral arguments in Washington before a three-judge panel with the US Court of Appeals for the DC Circuit over whether Trump is shielded from prosecution for his actions, including actions taken before the Jan. 6, 2021 riot at the US Capitol as Congress certified that he lost.

Trump, who is currently the frontrunner for the Republican nomination in the 2024 race for the White House, said on social media that he would attend the hearing, prompting heightened security in and around the federal courthouse. While his lawyers will present his legal arguments to the panel, Trump isn’t expected to address the court.

The judges could hand down their ruling at any time following the hearing. A ruling in favor of Trump would deal a potentially fatal blow to the Justice Department’s effort to hold a trial and convict him.

Whichever side loses can appeal the decision to the full DC Circuit or the US Supreme Court. But neither is required to take up the case, meaning the ruling could be the final word on the matter.

What Is This About?

Special Counsel Jack Smith in August obtained a four-count indictment against Trump charging him with conspiracy to defraud the US, obstructing an official proceeding, conspiracy to obstruct an official proceeding and conspiracy against rights.

While the courts usually shield US presidents from most lawsuits, no other sitting or former president has been federally indicted.

An appeals court rejected Trump’s bid for immunity against civil lawsuits related to Jan. 6, finding the conduct was part of his political campaign, and not his presidential duties.

The federal judge presiding over Smith’s case also ruled Trump isn’t entitled to immunity against the criminal charges, saying the office doesn’t come with a “lifelong ‘get-out-of-jail-free’ pass.”

The DC Circuit expedited consideration of Trump’s appeal at the request of Smith, who is seeking to try the case before this November’s presidential election. Trump is currently the frontrunner for the Republican nomination. The trial is scheduled to begin March 4, but court proceedings have been stayed until the immunity issue is resolved.

What Does Trump Say?

Trump contends he was acting within his official capacity as president during the lead—up to the Jan. 6 riot. He points to a 1982 Supreme Court ruling that said, with regard to civil suits, presidents have complete immunity for actions taken within the “outer perimeter” of their official duties. He wants to extend that to criminal cases.

Trump is also relying on the impeachment judgment clause of the Constitution. Trump’s lawyers say charging him would amount to double jeopardy because he already faced impeachment by the House of Representatives, even though he wasn’t convicted by the Senate.

No matter what, Trump’s actions are protected because “he was carrying out his duties as chief executive to investigate the overwhelming reports of widespread election fraud,” they wrote in a legal filing to the court.

What Does Smith Say?

Prosecutors say the acts that Trump is charged with fall outside the bounds of official duties, and therefore he can and should be prosecuted.

“The defendant argues that presidential immunity and principles of double jeopardy warrant dismissal of the indictment,” Smith and his team wrote in their legal filing. “Those arguments lack support in the separation of powers, constitutional text, history, or precedent.”

They said Trump’s argument about impeachment is invalid because he’s being criminally charged for different acts.

They also cited the pardon given to former President Richard Nixon before he could be indicted over the Watergate scandal. The fact that Nixon was pardoned shows that it’s possible for a president to be charged after he or she leaves office, Smith’s team wrote.

What Do Legal Experts Say?

Several legal experts made independent filings to the appeals court prior to the hearing, known as amicus briefs. The appeals panel told both both Trump’s lawyers and prosecutors to be prepared to address issues raised in those briefs.

The nonprofit group American Oversight argued the appeals court doesn’t have jurisdiction to even consider the issue and, therefore, the trial should proceed. The group argued there isn’t a constitutional provision that allows the court to consider the issue before trial so Trump would have to wait to file an appeal if he is convicted.

Another briefing was filed by a group of conservative lawyers led by former US Attorney General Edwin Meese. They argued that Smith’s appointment was unconstitutional and, therefore, the prosecution should be dismissed.

A group of constitutional lawyers also filed a brief, saying Trump’s “claimed immunity finds no support in the Constitution’s text or historical practice.” They argued for the prosecution to go forward.

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