January 10, 2024

Trump in court as his lawyers argue for presidential immunity from prosecution

By Farrah Tomazin
January 10, 2024 — 7.40am
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Washington: In a federal court in Washington, DC, a three-judge panel is considering a crucial question that will shape this year’s race for the White House. Can the former president be held criminally responsible for his efforts to overturn his 2020 election loss, or does he have immunity from prosecution?

The answer, according to Donald Trump and his lawyers, is that presidents shouldn’t even be prosecuted for assassinating a political rival unless they’d been impeached and convicted in the US Congress first.

“To authorise the prosecution of a president for his official acts would open a Pandora’s box from which this nation may never recover,” Trump lawyer John Sauer told the court during an extraordinary 75-minute hearing on Wednesday (AEDT).

“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 pretences? Could [former] president [Barack] Obama be potentially charged with murder for allegedly authorising drone strikes targeting US citizens located abroad?”

The pitch was one of the central arguments Trump’s legal team made as the former president appeared in court personally, hoping to kill off one of the four trials he currently faces as he campaigns to win the Republican nomination to run against President Joe Biden in November.

Special Counsel Jack Smith last year indicted Trump for conspiring to obstruct the 2020 election, which underpinned the deadly riot at the US Capitol building on January 6, 2021.

A sketch depicts Donald Trump (right) listening as his lawyer John Sauer speaks before the court.Credit: AP

However, Trump claims he should be immune from prosecution because the charges stem from actions that he took while he was president. The unprecedented hearing sets the scene for a high-stakes election that will play out in the courtroom as much as on the campaign trail.

Trump is currently the overwhelming Republican frontrunner to win the presidential nomination, with the first votes being cast on Monday when the all-important Iowa caucuses take place, allowing party members to pick their preferred candidate and choose delegates for the Republican Convention in July.

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He was not required to be in court in Washington, but opted to appear personally and used the case as another fundraising opportunity to prop up his campaign.

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“Crooked Joe is forcing me into a courtroom in our nation’s capital to defend my right to presidential immunity,” he wrote in a fundraising email seeking donations ahead of the hearing.

Throughout the hearing, the judges on the appeals court panel – two Democrat appointees and one Republican appointee – seemed highly sceptical of the Trump team’s argument that presidents should be immune to the charges because they arose from actions he took as president.

“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 Sauer.

“He would have to be – and speedily be – impeached and convicted before the criminal prosecution,” Sauer replied.

This was later seized on by Assistant Special Counsel James Pearce, representing the prosecutor’s office, who said it was frightening to think that a president could order a political assassination and then escape criminal prosecution.

He also argued that it had been clear since [former president] Richard Nixon was pardoned over the Watergate scandal that a former president could be prosecuted for actions in office.

“The president has a unique constitutional role, but he is not above the law,” Pearce said, as Trump listened intently and passed notes to his lawyer.

The court is expected to fast-track a ruling on the case, and if Trump loses – as is widely expected – he is likely to appeal in the US Supreme Court, further delaying the trial, which was meant to begin in March.

But it is simply one of many trials he faces: in addition to this case, the 77-year-old Republican also faces trial in New York for alleged hush money paid to a porn star, another one in Florida over classified documents and one in Georgia for allegedly trying to subvert the election results in that state.

What’s more, the Supreme Court has also agreed to review a contentious attempt to remove him from the ballot in Colorado, while, later this month, a judge is expected to rule on his civil fraud trial in New York, which could end his right to do business in that state.

A protester outside the E. Barrett Prettyman US Court House in Washington as Trump appeared in court.Credit: Bloomberg

And next Tuesday – one day after the Iowa caucus – he faces another civil defamation trial against writer E. Jean Carroll, whom he was last year found liable for sexually assaulting.

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Trump, who once claimed he could “stand in the middle of Fifth Avenue and shoot someone, and I wouldn’t lose any voters”, maintains his innocence in all the cases against him.

Speaking after the hearing, he described the day as momentous, insisted again that he was the victim of a political witch-hunt and doubled down on his assertion that the 2020 election was rigged.

“When they talk about a threat to democracy, that’s your real threat to democracy,” Trump said.

“I did absolutely nothing wrong.

“I think it’s very unfair when a political opponent is prosecuted by Biden’s [Department of Justice]. If you happen to be Joe Biden, I think they feel this is the way they’re going to try and win, and that’s not the way it goes. It’ll be bedlam in the country.

“A president has to have immunity.”

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Farrah Tomazin is the North America correspondent for The Age and Sydney Morning Herald.Connect via Twitter or email.
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