Donald Trump

Donald Trump isn't required to attend his appeals court argument on Tuesday, but he plans to do so anyway — the latest sign that he's using his legal troubles to juice his campaign. | Joe Raedle/Getty Images

Author: JOSH GERSTEIN and KYLE CHENEY Source: Politico
January 9, 2024 at 10:34
Donald Trump isn't required to attend his appeals court argument on Tuesday, but he plans to do so anyway — the latest sign that he's using his legal troubles to juice his campaign. | Joe Raedle/Getty Images
Donald Trump isn't required to attend his appeals court argument on Tuesday, but he plans to do so anyway — the latest sign that he's using his legal troubles to juice his campaign. | Joe Raedle/Getty Images

The outcome of the immunity appeal could determine whether Trump stands trial on federal charges of election interference.

Donald Trump’s return to the federal courthouse in Washington, on Tuesday could be his most consequential court date so far — a bid to derail special counsel Jack Smith’s criminal case against him for attempting to subvert the 2020 election, before the case goes to trial.

His appearance won’t pack the drama of his face-off with Smith at August’s arraignment, or the historic nature of the “ not guilty” plea he uttered that day before a criminal magistrate judge. But it will be his first time in the E. Barrett Prettyman Courthouse — where he could face a criminal jury later this year — since his momentous indictment last summer. And depending on the outcome of the proceedings, it could be his last.

Trump will step into the fifth floor courtroom of the D.C. Circuit Court of Appeals, just across the street from the Capitol. The three-judge panel, which includes two Biden appointees and a George H.W. Bush appointee, is scheduled to hear argument on a threshold question: Does Trump have “presidential immunity” from the charges Smith has leveled against him for his bid to overturn Joe Biden’s 2020 victory?

If the D.C. Circuit — and potentially the Supreme Court — says yes, the charges will be dropped. If the courts say no, Trump will move one giant step closer to standing trial this year on the charges.
 
 

The biggest difference between August’s arraignment and Tuesday’s argument session? Trump doesn’t actually have to be there. His decision to attend is simultaneously a bid to jack up the political intensity around his court proceedings — which he has used to drive fundraising and as a rallying cry to his base — as well as a recognition that this fight may be a decisive legal battle.

Trump, who has struggled for years with massive turnover among his lawyers, is expected to be represented by former Missouri Solicitor General John Sauer. Set to argue for the government is James Pearce, a Justice Department appellate lawyer assigned to Smith’s office. The arguments are scheduled for less than an hour but typically run longer in complex cases.

A quick ruling by the three-judge panel would tee up an appeal to either the full bench of the D.C. Circuit or the Supreme Court, which last month declined Smith’s request to consider the case on an expedited basis, prior to appeals court consideration.

Trump has already shown that he intends to use his myriad court dates to juice his campaign. On Monday, he falsely told supporters in an email that he was being “forced” off the campaign trail on the eve of GOP primary voting to attend the appeals court arguments, even though criminal defendants rarely attend appellate proceedings and are not required to do so.

Trump’s attendance at the courthouse, however, may be a useful test run for his trial — if his charges remain intact. It’s a chance to implement the extraordinary security measures required to ferry a former president in and out of the courthouse while maintaining other courthouse business.

Trump’s lawyers have argued that the broad legal immunity presidents are widely presumed to enjoy while in office extends to criminal cases filed against them after they leave office. They also contend that, because Trump was acquitted by the Senate after his 2021 impeachment over some of the same issues raised in the criminal case, he cannot be prosecuted.

Smith’s team warns that accepting Trump’s arguments would allow presidents to escape criminal liability for virtually any act they could claim had some tangential connection to their job. They also note that President Gerald Ford’s 1974 pardon of former President Richard Nixon seems to confirm that Nixon could have been prosecuted after he left office for his acts related to Watergate.
 


 

Trump’s attendance at the courthouse, however, may be a useful test run for his trial — if his charges remain intact. It’s a chance to implement the extraordinary security measures required to ferry a former president in and out of the courthouse while maintaining other courthouse business.

Trump’s lawyers have argued that the broad legal immunity presidents are widely presumed to enjoy while in office extends to criminal cases filed against them after they leave office. They also contend that, because Trump was acquitted by the Senate after his 2021 impeachment over some of the same issues raised in the criminal case, he cannot be prosecuted.

Smith’s team warns that accepting Trump’s arguments would allow presidents to escape criminal liability for virtually any act they could claim had some tangential connection to their job. They also note that President Gerald Ford’s 1974 pardon of former President Richard Nixon seems to confirm that Nixon could have been prosecuted after he left office for his acts related to Watergate.

The appeals judges also sent out an order last week warning both sides that they should be prepared to address arguments raised in friends-of-the-court briefs received in the case.

The judges did not elaborate, but the watchdog group American Oversight has argued that Trump’s appeal on the immunity issue is not ripe because criminal defendants normally have to wait until they’re convicted before challenging their indictment at an appeals court.

In addition, former Attorney General Ed Meese and two law professors filed an amicus brief directly attacking Smith’s authority to prosecute any case, arguing that Attorney General Merrick Garland lacked the authority to delegate power to Smith in the relatively unfettered manner allowed by the Justice Department’s special counsel regulations.

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