With former President Donald Trump present in the courtroom for the proceedings, justices on a federal appeals court in Washington, D.C., expressed skepticism about his claim that he is immune from prosecution on charges alleging that he sought to overturn the results of the 2020 election.
The three-judge panel, comprised of two appointees of President Joe Biden and one appointed by George H.W. Bush, also questioned whether they had jurisdiction over the proceedings at all at this stage, leading to the possibility of dismissal.
During the arguments, the judges repeatedly pressed Trump's lawyer to defend claims that Trump was shielded from criminal charges for acts that he says fell within his official duties as president. That argument was rejected last month by a lower-court judge overseeing the case against Trump, and the appeals judges suggested through their questions that they, too, were dubious that the Founding Fathers envisioned absolute immunity for presidents after they leave office.
Judge Karen LeCraft Henderson, an appointee of former President George H.W. Bush, expressed at one point during Tuesday's arguments that, "it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law."
Trump's attorney D. John Sauer argued that allowing the prosecution to move forward "would open a Pandora's box from which this nation may never recover."
"Could George W. Bush be prosecuted for obstruction of an official proceeding for allegedly giving false information to Congress to induce the nation to go to war in Iraq under false pretenses?" Sauer posited. "Can President Obama be potentially charged with murder for allegedly authorizing drone strikes targeting U.S. citizens located abroad?"
But Judge Florence Pan, a Biden appointee, pushed back by questioning whether presidential immunity could be applied far more broadly: "You're saying a president could sell pardons, could sell military secrets, could order SEAL Team Six to assassinate a political rival?"
Sauer also echoed the former president's baseless claims that President Joe Biden personally authorized the probe, brought by special counsel Jack Smith, who has been empowered to operate independently from the Justice Department. He charged, without evidence, that "the current incumbent of presidency is prosecuting his number-one political opponent and his greatest electoral threat" during an exchange with J. Michelle Childs, another Biden appointee who was floated as a possibility to fill a Supreme Court vacancy.
Speaking to reporters after Tuesday's hearing, Trump echoed his attorney's "Pandora's box" comment, warning of "bedlam in the country" if he's prosecuted and espousing baseless claims about Biden's involvement in the prosecution.
"It'll be bedlam in the country," Trump said. "It's a very bad thing. It's a very bad precedent ... it's the opening of a Pandora's box, that's a very sad thing that's happened with this whole situation."
"I feel that as president you have to have immunity, very simple," he added.
When asked by a reporter about his use of the term "bedlam" and if he'll tell his supporters not to use violence, the former president walked away without answering.
The outcome of the arguments carries enormous ramifications both for the landmark criminal case against Trump and for the broader, and legally untested, question of whether an ex-president can be prosecuted for acts committed in the White House. It will also likely set the stage for further appeals before the Supreme Court, which last month declined a request to weigh in but could still get involved later.
Jack Smith and his team are seeking a swift decision as they are eager to get the case, which is paused pending appeal, to trial before Election Day in November. But Trump's lawyers, in addition to seeking to get the case dismissed, are hoping to benefit from a protracted appeals process that could delay the trial well past its scheduled March 4 start date, including until potentially after the election.
Trump is seeking to have the federal election subversion case against him dismissed, arguing that as president he has “absolute immunity” from the charges, which accuse him of plotting to overturn the 2020 presidential election results.
Trump announced on his social media platform early Monday morning that he would be in attendance on Tuesday at a federal appeals court hearing about whether or not he has immunity from prosecution.
He also seemed to suggest that should the court not grant him immunity, he would prosecute President Joe Biden should he win back the White House, writing: "If I don’t get Immunity, then Crooked Joe Biden doesn’t get Immunity."
“I will be attending the the Federal Appeals Court Arguments on Presidential Immunity in Washington, D.C., on Tuesday,” Trump wrote in a post on his Truth Social platform early Monday morning. “Of course I was entitled, as President of the United States and Commander in Chief, to Immunity. I wasn’t campaigning, the Election was long over. I was looking for voter fraud.”
He went on to suggest that Biden is "ripe for indictment" after listing a number of criticisms about the Democratic president, namely the chaotic 2021 military withdrawal from Afghanistan, a surge of migrants at the U.S.-Mexico border and baseless allegations about his foreign business dealings. President Biden has not been charged with any crime, and a House GOP-led inquiry into his relation to his family's business dealings has not yet yielded evidence of wrongdoing.
"By weaponizing the DOJ against his Political Opponent, ME, Joe has opened a giant Pandora’s Box," he wrote, later adding: "As President, I was protecting our Country, and doing a great job of doing so, just look around at the complete mess that Crooked Joe Biden has caused. The least I am entitled to is Presidential Immunity on Fake Biden Indictments!"
It could be the second of two court appearances this week for Trump, who is expected to attend the closing arguments at his New York civil fraud trial Thursday. Trump's attorneys also filed motions seeking to dismiss the Georgia election subversion case on Monday, including one which argued that he is protected from prosecution by presidential immunity.
Smith's team argues that presidents are not entitled to absolute immunity and that, in any event, the acts Trump is alleged in the indictment to have taken — including scheming to enlist fake electors in battleground states won by Biden and pressing his vice president, Mike Pence, to reject the counting of electoral votes on Jan. 6, 2021 — fall far outside a president's official job duties.
“Immunity from criminal prosecution would be particularly dangerous where, as here, the former President is alleged to have engaged in criminal conduct aimed at overturning the results of a Presidential election to remain in office beyond the allotted term,” Smith's team wrote in a brief.
“A President who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardize both the Presidency itself and the very foundations of our democratic system of governance," they added.
Prosecutors say that if Trump's view of the law were to be accepted, a president could get away with steering a lucrative government contract in exchange for a bribe; instructing the FBI director to plant incriminating evidence on a political enemy; or selling nuclear secrets to a foreign adversary.
The Associated Press contributed to this report.