Is Trump ‘immune’ from prosecution? Appeals court to consider major question in election conspiracy case

Three-judge panel in Washington DC will hear arguments from prosecutors and Trump’s legal team

Donald Trump’s legal team will try to convince a federal appeals court that the former president should be immune from criminal prosecution for his attempts to overturn the 2020 presidential election.

His defence was already shot down by the judge overseeing the election conspiracy case against him. On Tuesday, a three-judge panel in Washington DC will hear arguments from the former president’s attorneys who want that decision reversed.

Mr Trump and his attorneys have argued that his alleged criminal actions on trial were part of his “official acts” as president.

The federal investigation into the efforts of Mr Trump and his allies to subvert the outcome of the election are detailed in a 45-page indictment outlining three alleged criminal conspiracies and the obstruction of Joe Biden’s victory, culminating in a mob’s violent breach of the US Capitol in a last-ditch riot to stop it.

A grand jury voted to indict Mr Trump last August after months of evidence and witness testimony under an investigation helmed by special counsel Jack Smith. A trial date is tentatively set for 4 March.

Mr Trump’s appeals and mounting court battles in the middle of the 2024 presidential race have threatened to steer that timeline off course.

How the judge overseeing the case ruled

On 1 December, US District Judge Tanya Chutkan rejected Mr Trump’s motion to have the case dismissed on immunity and constitutional grounds.

Judge Chutkan, who is overseeing the election conspiracy case, wrote that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

The office “does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote in a 48-page ruling,

Former presidents enjoy no special consideration after leaving office and are “subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office,” according to Judge Chutkan.

“Granting the immunity Defendant seeks would also break with longstanding legal precedent that all government officials – even those immune from civil claims – may be held to criminal account,” she added.

She also dismissed Mr Trump’s First Amendment defence, arguing that broad speech protections do not include speech “that is used as an instrument of a crime.”

What Jack Smith’s team argues

Prosecutors argue that Mr Trump relied on knowingly false claims about the election to pressure state officials to approve fraudulent slates of electors to obstruct the certification of the results, then attempted to persuade then-Vice President Mike Pence to refuse the outcome, and, ultimately, failed to dissuade a mob of his supporters from rioting at the US Capitol on January 6.

None of that should be “immune” from prosecution, according to Mr Smith.

Following Judge Chutkan’s order, the special counsel’s team went directly to the US Supreme Court to ask justices to quickly decide “whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

“The United States recognizes that this is an extraordinary request,” Mr Smith’s team wrote to the nation’s highest court. “This is an extraordinary case.”

Prosecutors warned that Mr Trump’s appeal of the judge’s order could derail a busy year of criminal trials while the 2024 frontrunner for the Republican nomination for president seeks a return to the White House.

“It is of imperative public importance that [Mr Trump’s] claims of immunity be resolved by this court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” prosecutors wrote to the Supreme Court. “Respondent’s claims are profoundly mistaken. ... Only this Court can definitively resolve them.”

The Supreme Court ultimately rejected the request, which Mr Trump’s team hailed as a victory.

In a final brief to the appeals court, prosecutors argued that Mr Trump’s “desperate attempts to cling to power did not constitute official presidential acts” that Mr Trump claims should be protected against prosecution.

“For the first time in our nation’s history, a grand jury has charged a former President with committing crimes while in office to overturn an election that he lost. In response, the defendant claims that to protect the institution of the presidency, he must be cloaked with absolute immunity from criminal prosecution unless the House impeached and the Senate convicted him for the same conduct. He is wrong,” prosecutors wrote on 30 December.

“Separation-of-powers principles, constitutional text, history, and precedent all make clear that a former president may be prosecuted for criminal acts he committed while in office – including, most critically here, illegal acts to remain in power despite losing an election,” they added.

They also shot down Mr Trump’s so-called “double jeopardy” claims, after the former president argued he can’t be prosecuted criminally for similar allegations that got him impeached and then acquitted in the Senate.

“Those claims draw no support from our constitutional heritage and, if accepted, would damage bedrock principles of equality before the law,” according to prosecutors.

What Trump’s team says

Attorneys for the former president claim Mr Trump’s actions outlined in federal charges fall under the “outer perimeter” of his official duties as president, citing a 1982 Supreme Court ruling about presidential immunity in a civil case.

A final 41-page filing to appeals court judges argues that Mr Trump’s actions constituted “official acts” under his presidency, and that prosecuting such actions now would compromise a “234-year unbroken tradition”.

“The likelihood of mushrooming politically motivated prosecutions, and future cycles of recrimination, are far more menacing and crippling to the presidency than the threat of civil liability,” they wrote.

“Therefore, the scope of criminal immunity has to be at least as broad as for civil immunity, i.e., the ‘outer perimeter’ of the president’s official responsibilities,” according to Mr Trump’s attorneys. “All five classes of conduct charged in the indictment fall within that broad scope.

Attorneys’ latest filing cites a lengthy report Mr Trump posted on Truth Social that revives debunked and unverified allegations of election fraud, relying on reports from fake, far-right and conspiracy theory-driven websites that have amplified Mr Trump’s bogus narrative that the 2020 election was stolen from and rigged against him.

And what Trump says

Donald Trump continues to characterise the multiple criminal cases and lawsuits against him as part of a grand conspiracy under President Joe Biden to keep him out of the White House. Out of office, Mr Trump is exposed to criminal and civil liability without an arsenal under his weaponised Justice Department at his disposal. He has called the court proceedings and litigation against him “election interference” – echoing the central allegation in the conspiracy case against him.

The day before the hearing, a fundraising email from Mr Trump through his campaign falsely claimed that appeals court arguments – which he is not obligated to attend – have “forced” him off the campaign trail in the days leading up to the first primary election votes of 2024.

He says he will attend the hearing, where he is likely to sit with attorneys.

“Of course I was entitled, as President of the United States and Commander in Chief, to Immunity,” he wrote in a post on his Truth Social. “I wasn’t campaigning, the Election was long over. I was looking for voter fraud, and finding it, which is my obligation to do, and otherwise running our Country.”

No evidence of widespread voter fraud to influence the outcome of the election has been discovered by his own campaign and administration, nor from election officials of both parties and from audits in contested states and elsewhere.

What happens at the hearing

The all-women panel at the historic hearing includes two Democratic appointed judges and one Republican appointee.

Judge Karen Henderson, who was appointed by George HW Bush in 1990, leads the panel alongside two judges appointed by President Biden: Michelle Childs and Florence Pan.

Trump attorney Dean John Sauer will argue on behalf of the former president. Justice Department lawyer James Pearce will represent Mr Smith’s team.

The parties will each argue for 20 minutes per side, with time for rebuttal. Judges typically question attorneys throughout their presentation, so the hearing is likely to last longer than a prescribed 45 minutes.

And what happens after

The case is being considered on an expedited schedule. A ruling could come relatively quickly.

Whatever ruling comes out of the appeals court is likely to land right back in front of the Supreme Court. The justices could kick the decision back to a lower court or agree to hear the case on appeal.

Justices are already considering another major Trump-related constitutional question: whether he should be disqualified from ballots in Colorado after that state’s Supreme Court found him ineligible for office under the text of the 14th Amendment.

Next month, the Supreme Court will hear arguments in Trump v Anderson to determine whether he is disqualified under Section 3 of the 14th Amendment, which prohibits anyone who has sworn an oath to uphold the Constitution and “engaged in insurrection or rebellion” from holding public office.