Judges sceptical of Donald Trump's immunity claim in election subversion case

A Washington appeals court questioned Donald Trump's claims that he is immune from criminal charges for trying to overturn the 2020 election, as the former US president on Tuesday (local time) warned he could prosecute Joe Biden if he returns to the White House.

Trump looked on as his legal team sought to convince a panel of three judges that former presidents should not be prosecuted for actions they took in office. Trump is due to go to trial in March on federal charges of election subversion.

Judges reacted skeptically to that argument.

"You're saying a president could sell pardons, could sell military secrets, could tell SEAL Team Six to assassinate a political rival?" Judge Florence Pan asked Trump lawyer D. John Sauer.

Sauer said that a former president could be charged for such conduct only if they were first impeached by the House of Representatives and convicted in the Senate.

Trump did not address the court, or speak to news media that waited outside the courthouse. He did, however, confer quietly with his attorneys several times during the hearing.

With the Republican state-by-state presidential nominating contest due to kick off next week, Trump used the hearing as an opportunity to claim he is the victim of political persecution.

In a video posted to social media ahead of the hearing, Trump said he could prosecute Democratic President Joe Biden if he wins the November presidential election.

"If I don't get immunity then crooked Joe Biden doesn't get immunity," Trump said. "Joe would be ripe for indictment."

Trump, who lost to Biden in the 2020 election, has opened up a commanding lead over his rivals for the Republican presidential nomination since the first criminal charge against him was announced last March. He is expected to easily win Monday's contest in Iowa.


The US Justice Department has long held that presidents cannot be prosecuted while in office for doing their official duties. Trump, the first former US president to be criminally prosecuted, faces 91 criminal counts in four separate cases.

Sauer, Trump's lawyer, told a three-judge panel of the US Court of Appeals for the District of Columbia Circuit that allowing prosecution to go forward would lead to a cycle of retribution after each election and "open a Pandora's Box from which that nation may never recover."

He said presidents must first be impeached and removed from office by Congress before he could be prosecuted. Trump was impeached twice but the Senate failed to convict him.

Some Republican senators declined to convict him after he was impeached for trying to overturn the 2020 election, on the grounds that he could be held accountable in court.

US prosecutors argue that Trump was acting as a candidate, not a president, when he pressured officials to overturn the election results and encouraged his supporters to march to the Capitol on Jan. 6, 2021.


The case against Trump reflects the unprecedented nature of his efforts to overturn the 2020 election and granting him immunity for those actions would give future presidents license to commit crimes, Justice Department lawyer James Pearce told the panel.

"The president has a unique constitutional role, but he is not above the law," he said.

Both the legal outcome and timing of the appeals court’s ruling will play a pivotal role in determining whether Trump faces trial ahead of the Nov. 5, 2024, election.

Smith has accused Trump of a multi-pronged conspiracy to hinder the counting and certification of his 2020 defeat, culminating in the Jan. 6 attack. Trump has pleaded not guilty to charges including defrauding the government and obstructing Congress.

The case is one of four criminal prosecutions Trump faces this year as he campaigns to win back the White House.

Trump's immunity claim has already been rejected by US District Judge Tanya Chutkan, who is overseeing the case. But it could take several weeks or months to be resolved on appeal.

Any ruling from the appeals court is almost certain to be appealed to the US Supreme Court, which last month denied a request from Smith to immediately decide the issue.

Activity in the case has been halted in the meantime, which could delay the trial's scheduled March 4 start.