The US Court of Appeals for the DC Circuit heard oral arguments from federal prosecutors and former President Donald Trump’s legal team on the issue of presidential immunity earlier this week. Trump argued that he is shielded from criminal liability in Special Counsel Jack Smith’s case against him, which alleges that Trump interfered in the 2020 US presidential election. Federal prosecutors on Smith’s team have pushed back against Trump’s claims of immunity, with District Judge Tanya Chutkan agreeing with the prosecutors at the lower level.
A panel of three circuit judges heard the two sides’ arguments on Tuesday. Leading the argument in favor of Trump’s immunity argument was the former president’s attorney, John Sauer. While Trump was present in the DC courtroom for the arguments, he was not permitted to speak. James Pearce presented arguments on behalf of the government. Smith was also present in the courtroom.
The court began arguments by asking each side to address whether the court had standing to hear the issue before it. This is because Trump’s appeal of Chutkan’s December 1, 2023 ruling denying his claim of presidential immunity is what is known as an interlocutory appeal. Before the trial court could determine whether Trump was guilty of the four charges against him in this case, he appealed the issue of his immunity to the DC Circuit. The trial court proceedings are therefore on hold until the DC Circuit issues its decision. Even so, Trump is expected to appeal any unfavorable ruling from the DC Circuit to the Supreme Court, which may delay the trial court proceedings—which were slated for March 4—even further.
Turning to Trump’s claim of absolute presidential immunity, Sauer maintained that Trump’s actions surrounding the 2020 US presidential election constituted official acts—meaning they were undertaken in Trump’s course of conduct as president of the US. With this claim, Trump seeks to expand Nixon v. Fitzgerald, which established presidential immunity from civil liability for any official acts taken in the “outer perimeter” of the president’s official duties. Without establishing the same immunity from criminal charges, Sauer asserted, presidents face potential political prosecution for their actions. Presidents should not be forced to look over their shoulders for every contentious decision they make, Sauer argued.
One of the safeguards against such political prosecutions, Sauer asserted, is the Impeachment Clause of the US Constitution. Sauer claimed that it is only possible for prosecutors to bring criminal charges over a president’s official acts if the president has previously been impeached and convicted by the Senate on the same charges. Sauer also argued that Trump has already been tried on charges related to the 2020 election since he was impeached—but not convicted—in Congress. Sauer asserted that any further charges stemming from the same events would amount to double jeopardy.
The judges appeared to push back against Sauer’s assertions during the Tuesday arguments. Circuit Judge Florence Pan asked if Sauer would maintain his argument on presidential immunity in instances where the president sold pardons, shared military secrets with a foreign adversary or ordered the armed forces assassinate a political rival. Sauer ultimately said no, not unless the president who committed those acts was first impeached and convicted by the Senate. Pan took that answer as a concession, saying, “So therefore, [a president is] not completely and absolutely immune because … he can be prosecuted if there’s an impeachment and conviction by the Senate.”
The panel also rustled at Sauer’s assertion that prosecutors engage in political decision-making when they bring criminal charges against a former or current president. The judges asked why prosecutors should be confined to impeachment proceedings when they only can pertain to a limited set of criminal offenses. The judges also resisted limiting prosecutors’ ability to bring different charges after they uncover additional evidence that might not have been aware during the impeachment proceedings. One of the judges even raised the point that Trump, through his former counsel for impeachment proceedings in Congress, said that no officeholder is immune from investigation and prosecution.
In response, Sauer asserted that prosecutors have the ability to investigate and bring their own charges when the charges involve purely private conduct. Sauer then claimed that the actions at issue in federal prosecutors’ indictment against Trump in this case only involve “obviously official conduct” and, therefore, stand apart.
Sauer also doubled down several times on his separation of powers argument. He argued that the judiciary cannot sit in judgment over the executive, since the two reside in separate articles of the US Constitution—articles three and two, respectively. The court questioned this assertion, referring Sauer to several US Supreme Court cases in which the court reviewed presidential actions. Sauer maintained that all of those cases involved “subordinate” actions, which were undertaken by individuals who answer to the president, but not the president himself.
The court then heard from Pearce on behalf of the US government. He refuted Trump’s claim of presidential immunity. Pearce claimed that, since the Nixon administration ended in the 1970s, there has been an understanding that presidents are subject to criminal liability and prosecution. He also dismissed Sauer’s claims that allowing for such prosecutions would open a floodgate of litigation, stating:
The fact that this investigation [yielded criminal charges] doesn’t reflect that we’re going to see a sea change of vindictive tit for tat prosecutions in the future. I think it reflects the fundamentally unprecedented nature of the criminal charges here.
The court asked Pearce to respond to Sauer’s claims of politically vindictive prosecutions. Specifically, the court asked about previous findings from Department of Justice (DOJ) officials—such as Special Counsel Robert Mueller from the Trump administration—that the indictment of a president is inherently political. Pearce responded by saying that those findings were made with regard to a sitting president, not a former president.
Pearce also pushed back against Sauer’s claim that Trump’s conduct at issue in the indictment was “obviously official conduct.” Pearce suggested the court look to the balancing test put forward for civil cases in Fitzgerald, which weighs the burden on the presidency against the public interests being forwarded. Here, Sauer suggests that the burden of this prosecution on the presidency and his ability to wield executive power far outweighs any public interests. But Pearce refuted that, stating that Sauer overstated this burden. Instead, Pearce said that the public interest in transparency and law enforcement should prevail.
Pearce also argued that the court must examine the motive and intent underlying the supposedly official conduct at issue. Pearce said that doing so would help to more clearly define whether Trump acted as an officeholder (which suggests official conduct and some level of protection from liability) versus an office seeker (which strays more towards the territory of private conduct).
The court has taken the issue under consideration and is expected to issue a decision within the coming weeks. The court has been operating on an expedited schedule, following a request from Smith.
Following Tuesday’s arguments, Trump spoke to reporters: “I feel that as a president, you have to have immunity, very simple. I did nothing wrong.”
