The D.C. Circuit Court of Appeals on Tuesday kept up in the air the critical question of when Donald Trump’s Jan. 6 trial will resume.
Judges kept wildly divergent options alive, including one proposal that neither Trump nor Special Counsel Jack Smith supports, which would see the court declare that it is unable to address the former President’s claim that he cannot be prosecuted over Jan. 6 until after he is convicted at trial.
Trump is furiously trying to delay his criminal cases until after the November election. But one option, first raised in a friend-of-the-court brief by the nonprofit group American Oversight, would see the D.C. Circuit assert that it lacks jurisdiction to hear the case until after the trial proceedings conclude.
In spite of both Trump attorney John Sauer and prosecutor James Pearce saying that they wanted the court to resolve Trump’s claim of absolute immunity now, judges took time at the outset of the hearing to entertain the proposal. At one point, Judge Michelle Childs, a Biden appointee, asked whether the court had jurisdiction to hear the case now.
But that was only one stab at entertaining one of many pathways which could determine whether the Trump trial takes place in the next few months, or far later in the year. Judge Karen Henderson, a George H. W. Bush appointee, raised a possibility which could add months of delay: Shouldn’t the case be remanded to the district court to resolve which parts of the indictment are “official acts?” which, Trump’s lawyers contend, cannot be prosecuted.
Sauer embraced the idea, saying the district court should filter out what allegations in the indictment refer to official acts, vs which ones refer to private acts.
The argument, sure to cause massive delay if it succeeds, goes to a central issue in Trump’s argument: What conduct, in Trump’s view, could prosecutors ever charge him with?
Judges across the board were skeptical of Trump’s claim that he has absolute immunity from prosecution over acts that he took while in office. Judge Henderson, the Bush Sr. appointee, described it as “paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.”
Trump was in the courtroom throughout, reportedly watching closely as Sauer tried to persuade the judges that he was only arguing that the acts alleged in the indictment were covered by official immunity, and not that Trump was above the rule of law.
Judge Florence Pan, a Biden appointee, homed in on Trump’s claim that the Senate’s failure to convict him at his February 2021 impeachment trial precluded any prosecution over Jan. 6.
If Trump agrees that former presidents can be prosecuted if they are convicted in an impeachment trial, she asked, doesn’t that reduce the argument to a simple question of how to interpret the Constitution’s impeachment judgment clause?
Sauer refused to fully entertain Pan’s line of argument, saying that he saw it as a “narrow exception” to the otherwise absolute immunity for presidents.
“Given that you’re conceding that presidents can be prosecuted under certain circumstances, doesn’t that narrow the issues before us to can a president be prosecuted without first being impeached and convicted?” Pan reiterated.
Pan pounced with attention-catching hypotheticals to express the near-limitless boundaries of Sauer’s argument.
She started (relatively) small.
“Could a president sell pardons or sell military secrets?” she asked. “Such a president would not be subject to criminal prosecution?”
She then built to her crescendo.
“Could a president order SEAL team six to assassinate a political rival?” she asked.
Sauer maintained that the president would have to be impeached and convicted by Congress.
“If he weren’t, there would be no criminal prosecution?” Pan asked incredulously. “No criminal liability for that?”
The government found Pan’s hypotheticals so useful to its case that Pearce brought it up on his own later in the arguments.
“What kind of world are we living in if, as I understood my friend on other side to say here, a president orders his SEAL team to assassinate a political rival and resigns, for example, before an impeachment — not a criminal act,” he said. “The president sells a pardon, resigns, or is not impeached — not a crime. I think that is an extraordinarily frightening future.”
