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Judges push back against Trump's immunity claim in the election interference case

Lawyers for former President Donald Trump are arguing that he enjoys immunity from prosecution.
Brandon Bell
Getty Images
Lawyers for former President Donald Trump are arguing that he enjoys immunity from prosecution.

Former President Donald Trump is expected to make a rare Tuesday appearance in a courtroom in Washington, D.C., for a make-or-break moment in his federal election interference case.

Lawyers for Trump argue he has immunity from prosecution. And if the appeals court panel sides with Trump, it could mean the end of the federal case against him.

Trump has pleaded not guiltyto four felony counts that accuse him of leading a conspiracy to cling to power and disenfranchise millions of voters in 2020. Prosecutors say that this culminated in violence at the U.S. Capitol three years ago that injured 140 law enforcement officers and shook the foundations of American democracy.

Arguments in the case

Trump attorneys John Lauro and Todd Blanche assert that those charges are based on official actions Trump took while he was president — and that Trump was simply raising questions about the integrity of the election.

They also argue that because Trump was impeachedby the House of Representatives, but not convicted by the U.S. Senate, for his behavior around the Capitol riot, to prosecute him now would violate the principle against double jeopardy.

"I wasn't campaigning, the Election was long over," Trump wrote in a social media post this week, announcing his intention to appear at the courthouse in the District of Columbia for the first time since his arraignment last August. "I was looking for voter fraud and finding it, which is my obligation to do, and otherwise running the country."

No evidence has emerged of fraud in the 2020 presidential election that would have changed the outcome of the race, as independent experts and many of Trump's own Cabinet officials publicly concluded.

Prosecutors working for special counsel Jack Smith say in court papers that if the U.S. Court of Appeals accepts Trump's sweeping claims, it would "undermine democracy." The special counsel team says such reasoning would give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.

No former president has ever been charged with a crime. Trump is the first. So an eventual ruling will be a landmark no matter which way the court rules.

Record of past presidents

History might be a guide. Former President Richard Nixon eventually received a pardonfrom his successor, Gerald Ford, after the Watergate scandal. And courts have found that presidents have some shield from civil liability in lawsuits over money damages, if the claims relate to their work as president. The Justice Department said Trump was acting like a political candidate, not as president, when he tried to cling to power in 2020 and early 2021.

The appeal will be heard by U.S. Circuit Judges Karen LeCraft Henderson, who was appointed by President George H.W. Bush; Michelle Childs, who was appointed by President Biden; and Florence Pan, another Biden appointee. The judges have given each side 20 minutes to make their case, but oral arguments often run longer than the allotted time.

If the judges move quickly and agree with prosecutors, it's possible the trial set for March 4 could experience only brief delays. But if Trump asks the full appeals court to hear the case or moves to the U.S. Supreme Court, any trial this year might stall.

Already Trump's serious legal troubles — he is fighting 91 criminal charges in four separate U.S. jurisdictions — are clashing with the political calendar.

The former president has signaled that he could seek to dismiss the federal cases against him in D.C. and Florida if he regains the White House. His lawyer in Georgia recently suggested Trump may try to delay the election interference case against him in Fulton County, Ga., until 2029.

Copyright 2024 NPR. To see more, visit https://www.npr.org.

Carrie Johnson is a justice correspondent for the Washington Desk.