Judicial review of Trump’s Assertion of Immunity in Investigation of Alleged Election Meddling

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WASHINGTON: Federal appeals court judges raised the question of whether outgoing president Donald Trump may avoid prosecution for his actions leading up to the assault on the Capitol on January 6, which began with his attempts to reverse the 2020 election results.

Shortly before the start of the oral arguments at 9:30 a.m., Trump made his way to the federal courthouse in Washington, D.C. It is possible that the hearing will go on for a while.

As the presumed Republican presidential front-runner, Trump is fighting on numerous fronts, including four separate criminal charges, including this one.

Judge Florence Pan immediately bombarded Trump’s counsel with hypothetical instances in which the president could not face charges.

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She wanted to know if a president might face charges for selling pardons or military secrets or for directing the murder of a political rival.

“I understand your position to be that a president is immune from criminal prosecution for any official act that he takes as president, even if that action is taken for an unlawful or unconstitutional purpose. Is that correct?” “Pan said,” he continued.

Trump’s lawyer, D. John Sauer, argued that the Senate must convict the president before he can be impeached and tried for crimes.

Prosecutors’ stance “would authorize, for example, the indictment of President Biden in the Western District of Texas after he leaves office for allegedly mismanaging the border,” Sauer noted.

It is unclear whether the Washington trial, initially scheduled for March, will be held before the election, with Trump running for re-election. In order to keep the trial on track, special counsel Jack Smith has requested the court move fast.
An all-woman three-judge panel of the United States Court of Appeals for the District of Columbia Circuit is hearing the case on an expedited basis, so a decision might come soon, possibly in time for Trump’s trial to begin as planned.

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Whatever happens, the losing party will almost certainly file an urgent appeal with the Supreme Court. The justices would then have to decide whether to take up the case and issue their own ruling, potentially in a hurry.

Trump said on Monday that if the Supreme Court does not rule in his favor and he wins the election, he will have President Joe Biden indicted.

Trump’s appeal stems from a four-count indictment in Washington, which included accusations of conspiracy to defraud the US and conspiracy to obstruct an official action. Trump has entered a not-guilty plea.

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In December, U.S. District Court Judge Tanya Chutkan refused Trump’s request to dismiss the charge based on presidential immunity and other constitutional grounds. While the appeals process is completed, the case is on hold.

Trump’s lawyers say that he enjoys immunity under the principle of separation of powers since his activities challenging the election results and lobbying Congress to delay certification of Biden’s victory were “official acts” when he was president.

They reference, in part, a 1982 Supreme Court decision that upheld presidential immunity from civil litigation where the underlying activity occurs within the president’s “outer perimeter” of official obligations.

Smith, who is prosecuting Trump, claims that there is no blanket immunity that protects previous presidents from prosecution for crimes committed while in office.

Furthermore, Smith argues in court papers that Trump’s attempt “to use fraudulent means to thwart the transfer of power and remain in office” should not be regarded as an official act.

Trump further claims that any prosecution is illegal due to his impeachment and acquittal for the same offense. Among other things, Trump claims his constitutional right to avoid double jeopardy, which means being prosecuted twice for the same offense.

The Constitution clearly specifies that a president who is effectively impeached might face criminal charges as well, as Smith stated in his court documents. He noted that there is nothing in the Constitution that says an impeached president cannot be charged.

Judge Karen Henderson, a Republican appointee, and Pan and Judge Michelle Childs, both Democrats, make up the appeals court panel.

The judges may consider an argument presented in a friend-of-the-court brief by the liberal group American Oversight, not by Trump or Smith, asserting that the appeals court lacks jurisdiction to hear the case at this level. If the court accepts that reasoning, it could send the case back to Chutkan for the trial to proceed.

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By Raushan
A Software engineer by profession, cook and blogger by passion
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