WASHINGTON — Donald Trump returned for the first time in months to the federal courthouse in Washington as an appeals court heard arguments Tuesday on whether the former president is immune from prosecution on charges that he plotted to overturn the results of the 2020 election.
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 U.S. Supreme Court, which last month declined a request to weigh in but could still get involved later.
Underscoring the importance to both sides, Trump attended Tuesday's arguments even though the Iowa caucuses are just one week away and despite the fact that there's no requirement that defendants appear in person for such proceedings. It was his first court appearance in Washington, one of four cities where he faces criminal prosecutions and potential trials, since his arraignment in August.
Here's how the hearing unfolded Tuesday morning:
11:45 a.m. - In a brief statement to reporters with his lawyer following the hearing, former president Donald Trump insisted he did nothing wrong.
"I did nothing wrong. Absolutely nothing wrong. I was working for the country," Trump said. He called the entire court hearing "mindboggling" and asserted that as president, he had immunity.
"As a president, you have to be able to do your job," he said.
10:49 a.m. - And with that, the arguments have concluded for the day. The panel seemed to be roundly skeptical of Sauer's arguments and seriously considering dismissing the appeal altogether under the precedent set in 1989's Midland Asphalt v. U.S. case
10:45 a.m. - Judge Pan struggles to get Sauer to agree that, under his theory, if a president was convicted in the Senate for the same or related conduct they could then be prosecuted by the Justice Department. Eventually he agrees in a hypothetical scenario.
10:39 a.m. - Sauer is back up for another ~5 minutes or so. He says Trump isn't arguing he's above the law — he's arguing he enjoys fundamental protections guaranteed by the law.
10:34 a.m. - Pearce wants the Circuit to say presidential immunity is an "on/off switch." Which is to say, either that he is immune from these charges, and so the case is thrown out, or he's not, and so there's no further immunity arguments to be made.
10:31 a.m. - Pearce says under Sauer's framework, any presidential act that is "plausibly official" — including, as Judge Pan asked, assassinating a political rival — would be exempt from prosecution.
10:24 a.m. - Pearce says Trump's alleged acts — using the levers of power to try to corrupt an election — have never been present before, but if they were "it would be awfully scary" if criminal prosecution wasn't an option.
10:13 a.m. - Sauer is done now and assistant special counsel James Pearce is up. Pearce: "Never in our nation's history has a president claimed that immunity extends beyond his time in office. The president has an important constitutional duty, but he is not above the law."
10:12 a.m. - Judge Pan says, aren't there other Article II interests besides the president's ability to act without "looking over his shoulder," as Sauer put it, that are countervailing to his claims? She specifically mentions law enforcement
10:01 a.m. - Judge Henderson asks why the "Take Care Clause" of Article II doesn't require the president to ensure that the laws of the country are faithfully executed? "I think it's paradoxical to say that his constitutional duty to take care that the laws of the country be faithfully executed allows him to violate criminal law."
9:55 a.m. - The panel points out that in Trump v. Vance (a case about Trump's tax records related to the Stormy Daniels scandal), Trump's attorney at the time said explicitly that no officer of the government is absolutely immune to criminal prosecution.
9:53 a.m. - Sauer says Trump's Twitter account was an "official channel of the presidency" during his term and so any statements made there should also be immune from use in a prosecution.
9:50 a.m. - Sauer seems to concede a president could be prosecuted for purely private conduct. Judge Childs says the indictment claims all of the alleged criminal acts were purely private conduct — i.e. that Trump was acting as a political candidate, not the president.
9:49 a.m. - Sauer has mostly avoided the polemical style of Trump's district court attorney, John Lauro, but he dipped into it just now to accuse President Joe Biden of prosecuting his main political opponent, which he refers to as the "greatest political threat" to this country.
9:45 a.m. - Judge Pan: "It just seems to me that once you concede that presidents can be prosecuted under some circumstances, your separation of powers argument falls away."
9:41 a.m. - Judge Pan: “You’re saying a president could sell pardons. Could sell military secrets. Could order Seal Team 6 to assassinate a political rival.”
9:40 a.m. - Judge Pan: "Could a president order Seal Team 6 to assassinate a political rival?" Sauer, after some preamble: "If he were impeached and convicted first."
9:39 a.m. - Judge Pan jumps in quickly and asks Sauer whether his view is that a president can't be prosecuted at all for any official act. She brings up examples of selling pardons or military secrets. Sauer says the president can only be prosecuted if first convicted by the Senate.
9:37 a.m. - Sauer begins: "To authorize a president to be prosecuted for his official acts would open a Pandora's Box from which this nation would never recover."
9:34 a.m. - The panel of judges convened includes Judges Karen LeCraft Henderson, Michelle Childs and Florence Pan. The panel begins with questions for Trump attorney Sauer about whether they have jurisdiction over presidential immunity questions. That was challenged by an amicus brief, although Trump himself isn't arguing that.
9:31 a.m. - Arguing for Trump is Dean John Sauer, a former Missouri solicitor general who previously represented him in his attempts to have a partial gag order thrown out. For the Justice Department, arguing will be assistant special counsel James Pearce.
9:15 a.m. - Trump's motorcade arrives outside the E. Barrett Prettyman Courthouse.
9:10 a.m. - One lone demonstrator braves the rain outside the US Appeals Court holding a sign that reads "Trumps coup failed" as he waits for the president to arrive.
8 a.m. - Road closures are already in place around the courthouse before Trump's anticipated arrival. The Metropolitan Police Department is working closely with the U.S. Secret Service, U.S. Marshals Service, U.S. Park Police, U.S. Capitol Police, the Federal Protective Service, and other agencies to ensure safety and security surrounding Tuesday's court appearance by the former president. MPD does not provide specifics on operations, tactics, or staffing. MPD anticipates road closures and short-term traffic implications. There are parking restrictions in the immediate blocks surrounding the federal courthouse. The hearing is expected to begin around 9:30 a.m.
WUSA9's Jordan Fischer and Eric Flack will be at the hearing Tuesday.
Do you have a news tip on this story or any other story? We want to hear from you. Tell us about it by emailing newstips@wusa9.com.
MORE WAYS TO GET WUSA9
DOWNLOAD THE WUSA9 APP
Apple App Store: WUSA9 News on Apple
Google Play Store: WUSA9 News on Android
HOW TO ADD THE FREE WUSA9+ APP TO YOUR STREAMING DEVICE
ROKU: add the channel from the ROKU store or by searching for WUSA9.
For both Apple TV and Fire TV, search for "WUSA9" to find the free app to add to your account. Another option for Fire TV is to have the app delivered directly to your Fire TV through Amazon.
SIGN UP TO RECEIVE WUSA9 NEWSLETTER
Subscribe to our daily WUSA9 Newsletter for top stories from WUSA9 curated daily just for you. Get content and information right now for can’t-miss stories, Commanders content, weather, and more delivered right to your inbox.