Donald Trump returns to court as judges hear arguments on immunity

“To authorise the prosecution of a president for official acts would open a Pandora’s box from which this nation may never recover,” said D John Sauer, a lawyer for Trump, claiming that presidents could be prosecuted for giving Congress “false information” to enter war or for authorising drone strikes targeting US citizens abroad.

Mr Sauer said presidential immunity is clearly a claim that is meant to be reviewed before trial and also noted that special counsel Jack Smith’s team has not challenged the court’s jurisdiction.

The panel of three judges, two of whom were appointed by President Joe Biden, expressed deep scepticism that the former president is immune from prosecution, and questioned whether they had jurisdiction to consider the appeal at this point in the case, raising the prospect that Trump’s effort could be dismissed.

During lengthy arguments, the judges repeatedly pressed Trump’s lawyer to defend claims that he 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, and the appeals judges suggested through their questions that they were also dubious that the Founding Fathers envisioned absolute immunity for presidents after they leave office.

“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,” said Judge Karen LeCraft Henderson, an appointee of former president George HW Bush.

The outcome of the arguments carries enormous ramifications 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 is also likely to set the stage for further appeals before the US Supreme Court, which last month declined a request to weigh in but could still get involved later.

A swift decision is crucial for Mr Smith and his team, who are eager to get the case — now paused pending the appeal — to trial before the November election, 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.

After the arguments, Trump spoke to reporters at the Waldorf-Astoria hotel, which used to be the Trump International Hotel, calling it “a very momentous day”.

He insisted he did nothing wrong and claimed he was being prosecuted for political reasons, adding: “A president has to have immunity.”

Trump, the 2024 Republican presidential primary front-runner, attended Tuesday’s arguments even though the Iowa caucuses are just a week away and despite the fact there is no requirement that defendants appear in person for such proceedings.

It will be his first court appearance in Washington, one of four cities where he faces criminal prosecutions and potential trials, since his arraignment in August.

He is already signalling that he could use the appearance to portray himself as the victim of a politicised justice system. Although there’s no evidence that President Joe Biden has had any influence on the case, Trump’s argument could resonate with Republican voters in Iowa as they prepare to launch the presidential nomination process.

“Of course I was entitled, as President of the United States and Commander in Chief, to Immunity,” he wrote in a social media post, adding: “I was looking for voter fraud, and finding it, which is my obligation to do, and otherwise running our Country.”

Former presidents enjoy broad immunity from lawsuits for actions taken as part of their official White House duties, but because no former president before Trump has ever been indicted, courts have never before addressed whether that protection extends to criminal prosecution.

Trump’s lawyers insist that it does, arguing that courts have no authority to scrutinise a president’s official acts and decisions and that the prosecution of their client represents a dramatic departure from more than two centuries of American history that would open the door to future “politically motivated” cases.

They filed a similar motion on Monday in another criminal case against Trump in Georgia.

Mr Smith’s team has said 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 Mr Biden and pressing his vice president, Mike Pence, to reject the counting of electoral votes on January 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,” Mr Smith’s team wrote in a brief.

“A president who unlawfully seeks to retain power through criminal means unchecked by potential criminal prosecution could jeopardise both the presidency itself and the very foundations of our democratic system of governance.”

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 case is being argued in the US Court of Appeals for the DC Circuit.

It is not clear how quickly the panel will rule, though it has signalled that it intends to work fast. The judges requested that prosecutors and defence lawyers submit briefs in rapid succession last month, including setting filing deadlines on Saturdays.