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It Doesn’t Look Good for Trump’s Immunity Appeal

Skeptical is the keyword for the three-judge panel.

by | Jan 10, 2024 | Articles, Good Reads, Law, Opinion

Former President Donald Trump took the day off from campaigning in Iowa yesterday (Jan. 9) to attend a hearing before a three-judge DC Circuit Court of Appeals panel. At issue is whether Trump had presidential immunity following the 2020 election and cannot be prosecuted for his actions on Jan. 6, 2021, by special counsel Jack Smith. The hearing came about because the US Supreme Court refused a petition from Smith, which was sent back to the Circuit Court.

GettyImages-1250106935 John Sauer

John Sauer (Tom Williams/CQ-Roll Call, Inc via Getty Images)

The three judges, two of whom were appointed by Joe Biden and one by George H.W. Bush, hammered Trump’s attorney John Sauer with a plethora of hypothetical questions and appeared to take a skeptical eye to the former president’s position.

One particularly unusual exchange occurred when a judge asked Sauer what if a president ordered “SEAL Team Six to kill a political rival.” According to a report in The Hill, Trump’s attorney maintained the president would have to be “impeached and convicted” before he could be prosecuted. Arguing on behalf of the special counsel, James Pearce chimed in with:

“What kind of world are we living in … if a president orders his SEAL team to murder a political rival and then resigns or is not impeached — that is not a crime? I think that is an extraordinarily frightening future that should weigh heavily on the court’s decision.”

Bush appointee Judge Karen Henderson sounded skeptical of Trump’s position when she pointed out, “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law,” according to Fox Digital.

Will No Immunity Equal Bedlam?

Hypothetical questions aside, the linchpin of Trump’s case is that a former president is being prosecuted by his chief current political opponent. This argument appeared to make some headway with Judge Henderson, who wondered aloud how a decision could be made against immunity that would not result in the “floodgates” being opened against a slew of former presidents.

That appeared to be Trump’s main point following the hearing. Speaking to a gaggle of reporters at the Washington DC Waldorf Astoria Hotel (formerly a Trump property), he warned there would be “bedlam in the country” if he lost the immunity case.

Bedlam or not, and based on the questions from the three-judge panel, court watchers speculate the former president is not likely to prevail in this legal action. Liberty Nation’s Legal Affairs Editor Scott Cosenza, Esq. explained:

“The DC Circuit panel hesitated to accept Trump’s arguments and appeared ready with some tough hypotheticals. To give Trump a win on a novel application of the law benefiting his political prospects seems unlikely given who appointed the judges. I suspect they will rule in favor of Mr. Smith, knowing the Supreme Court will address any oversight in their rulings, and they will still be in favor at their kids’ school functions.”

But here’s the kicker: Should Trump lose this battle, he may have helped himself by slowing down things. Currently, the trial date is set for March 4, and what Trump needs above all right now is time, which means that delaying proceedings until after the presidential election is a crucial part of the game.

Read More From Leesa K. Donner

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