Trump's appeals hearing on presidential immunity claims

By Dan Berman

Updated 3:01 p.m. ET, January 9, 2024
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9:59 a.m. ET, January 9, 2024

Judge asks if a president can order SEAL Team 6 to assassinate a political rival

From CNN's Marshall Cohen

In this 2022 photo, Florence Pan appears before the Senate Judiciary Committee on Capitol Hill in Washington, DC.
In this 2022 photo, Florence Pan appears before the Senate Judiciary Committee on Capitol Hill in Washington, DC. Francis Chung/E&E News/POLITICO/AP

Trump lawyer John Sauer said Tuesday that a president who ordered the military to assassinate a political rival or sold pardons to criminals could only be criminally prosecuted if they are first impeached and convicted by Congress.

Appeals court Judge Florence Pan, a nominee of President Joe Biden, posed the hypothetical questions to flesh out the bounds of Sauer’s immunity argument.

Broadly, his argument relies on the theory that presidents are shielded from prosecution for official actions if there isn’t an impeachment conviction first.

“Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six,”

Pan said “He would have to be, and would speedily be impeached and convicted before the criminal prosecution,” Sauer said. “I asked you a yes or no question,” Pan said.

"If he were impeached and convicted first,” Sauer replied.

“So your answer is no,” Pan said.

Sauer responded, “My answer is qualified yes. There is a political process that would have to occur.”

9:57 a.m. ET, January 9, 2024

Why Richard Nixon's name keeps coming up in the hearing

From CNN's Devan Cole

President Richard Nixon announces his resignation on television in Washington, DC.
President Richard Nixon announces his resignation on television in Washington, DC. Hulton Archive/Getty Images

Two Supreme Court cases involving former President Richard Nixon are being tossed around quite a bit during Tuesday’s hearing, as both sides point to the pair of immunity disputes decided by the high court decades ago to bolster their arguments in the latest immunity controversy. 

Former President Donald Trump’s team has pointed to a 1982 Supreme Court case involving Nixon in which a 5-4 court said the then-former president was “entitled to absolute immunity from damages liability predicated on his official acts.” 

The decision handed a win to Nixon, who was trying to fend off a civil lawsuit brought against him and two White House aides by a former Defense Department whistleblower who claimed his ousting was in retaliation for damning congressional testimony about government cost overruns. 

More than 40 years later, Trump’s team is citing the ruling, authored by Justice Lewis Powell, to reinforce their argument that he should be shielded from criminal prosecution. 

“The President’s ‘unique position in the constitutional scheme,’ … guarantees him immunity from trial,” they wrote. 

But the special counsel’s team pushed back strongly on those arguments, writing in their own brief that the court’s decision in the Nixon civil matter “does not render a former President immune from criminal liability when charged with violations of generally applicable federal criminal statutes.” 

The other immunity case expected to get a lot of play during the hearing, US v. Nixon, is likely more familiar to the general public. In that case, the Supreme Court in 1974 unanimously rejected Nixon’s claims of presidential privilege in a subpoena fight over Oval Office tapes sought by prosecutors in one of the Watergate-era criminal cases.   

“Judicial review of Presidential compliance with the law continues to the present,” special counsel Jack Smith’s teams told the appeals court, citing the 1974 case. “And significantly here, courts have conclusively rejected Presidential claims of unreviewable power to resist criminal process.” 

10:06 a.m. ET, January 9, 2024

Trump's lawyer: Letting charges go forward would open a "Pandoras's box" to prosecuting political enemies

From CNN's Hannah Rabinowitz

D. John Sauer listens as he testifies during a hearing on Capitol Hill in Washington, DC, on in July 2023.
D. John Sauer listens as he testifies during a hearing on Capitol Hill in Washington, DC, on in July 2023. Jim Watson/AFP/Getty Images

John Sauer, an attorney representing Donald Trump, kicked off Tuesday’s hearing by arguing that prosecuting a former president would “open a Pandora's box.”

“To authorize the prosecution of a president for his official acts would open up Pandora’s box from which this nation may never recover,” Sauer said.

“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 pretenses?” Sauer asked.

“Could President Obama be potentially charged for murder for allegedly authorizing drone strikes targeting US citizens located abroad?" he added.

Sauer is expected to speak for 20 minutes. He’ll have a short amount of time later Tuesday to offer a rebuttal to the government’s arguments.

9:49 a.m. ET, January 9, 2024

First topic of the hearing: Should we even be here now?

From CNN's Holmes Lybrand

Republican presidential candidate and former President Donald Trump looks on during a campaign event on December 19, 2023 in Waterloo, Iowa.
Republican presidential candidate and former President Donald Trump looks on during a campaign event on December 19, 2023 in Waterloo, Iowa. Scott Olson/Getty Images

The appeals court hearing on former President Donald Trump's immunity claims started with a slight detour to discuss the question of whether the court should even be hearing the case.

In a brief filed in the appeals case, the watchdog group American Oversight argued the DC District Court doesn’t have jurisdiction to take up Trump’s immunity appeal before trial. The group says that unless there is an explicit constitutional or statutory guarantee cited that would stop a trial from occurring, the issue should be left for appeal until after the trial.

American Oversight argued that the only two constitutional provisions that would stop a trial from occurring are in the Speech or Debate clause and the Double Jeopardy clause, neither of which are being relied upon by Trump in his appeal of presidential immunity, according to the group.

Instead, Trump cites the Impeachment Judgement clause to argue that because Trump was acquitted by the Senate of causing an insurrection, he shouldn’t be allowed to be again prosecuted by special counsel Jack Smith.

American Oversight, in their brief, argues that this is different from the Double Jeopardy clause in the Constitution, which prohibits individuals from being prosecuted twice for the same crime, the Impeachment Judgement clause never explicitly states a “guarantee that trial will not occur.”

Trump attorney John Sauer told the court that presidential immunity is an issue that should be addressed now, so Trump wouldn't be deprived of protections he may have as a defendant from sitting for trial.

9:33 a.m. ET, January 9, 2024

Court is now in session

From CNN's Dan Berman

The federal appeals court hearing that could go a long way to determining former President Donald Trump's political and legal future has begun.

John Sauer will be arguing on behalf of the former president that he is immune from prosecution for his actions following the 2020 election.

James Pearce will argue on behalf of the special counsel's office.

9:28 a.m. ET, January 9, 2024

Trump arrives at federal courthouse for hearing

From CNN's Dan Berman

The motorcade of former President Donald Trump arrives for a hearing on Trump's claim of immunity in the federal case accusing him of illegally attempting to overturn his 2020 election defeat, at U.S. District Court in Washington, DC, on Tuesday.
The motorcade of former President Donald Trump arrives for a hearing on Trump's claim of immunity in the federal case accusing him of illegally attempting to overturn his 2020 election defeat, at U.S. District Court in Washington, DC, on Tuesday. Nathan Howard/Reuters

Former President Donald Trump has arrived at the E. Barrett Prettyman federal courthouse in Washington, DC, before the high-stakes hearing on immunity.

His motorcade drove directly into the garage and we do not expect to see Trump before the hearing begins.

9:19 a.m. ET, January 9, 2024

One floor above Trump's hearing, 100 people will be sworn in as US citizens and register to vote

From CNN's Hannah Rabinowitz

More than 100 people from around the world are set to be sworn in as American citizens Tuesday morning in the same courthouse where former President Donald Trump’s lawyers will argue that he has immunity from prosecution.

The naturalization ceremony will take place just one floor above the courtroom where Trump and his attorneys will be and is set to begin at the same time as Trump’s hearing.

Nearly every seat the room where the ceremony is to take place — which is the largest room in the courthouse — is full. Inside, friends and family are excitedly huddled around those preparing to take a citizenship oath, some of whom are carrying small American flags.

Volunteers from the League of Women Voters are stationed outside the ceremony to help the newly sworn-in citizens register to vote in the 2024 presidential election.

9:14 a.m. ET, January 9, 2024

Special counsel team arrives in courtroom

From CNN's Holmes Lybrand

Special counsel Jack Smith and his prosecutors have arrived at the appeals hearing over whether former President Donald Trump is immune from prosecution.

The attorney arguing on behalf of the special counsel, James Pearce, will have 20 minutes to make his case in front of the three-judge panel as to why Trump should not be immune for prosecution for his actions following the 2020 election.

Smith has argued that such immunity would threaten “the democratic and constitutional foundation of our Republic.”

9:31 a.m. ET, January 9, 2024

Trump’s federal immunity appeals hearing is starting soon in Washington, DC. Here's what to know 

From CNN's Jeremy Herb, Holmes Lybrand, Hannah Rabinowitz and Devan Cole

The Washington Metropolitan police set up barricades, before the arrival of former US President Donald Trump, near the federal courthouse in Washington, DC, on Tuesday.
The Washington Metropolitan police set up barricades, before the arrival of former US President Donald Trump, near the federal courthouse in Washington, DC, on Tuesday. Andrew Caballero-Reynolds/AFP/Getty Images

A federal appeals court is hearing arguments Tuesday over whether Donald Trump is immune from prosecution for actions he took after the 2020 election, one of the key questions that could determine the former president’s legal and political fate in 2024.

Trump is attend the oral arguments in the US Circuit Court of Appeals for the District of Columbia Circuit where a three-judge panel will decide whether the federal charges brought against him by special counsel Jack Smith should be dismissed based on Trump’s claims of immunity.

Trump’s presence at the 9:30 a.m. ET hearing Tuesday – less than week before the Iowa caucuses – underscores how intertwined Trump’s legal and political worlds have become, as the former president has made the four criminal indictments against him a key part of his pitch to his supporters in the 2024 campaign.

The immunity question is ultimately expected to end up before the Supreme Court, one of several consequential questions the high court will take up related to Trump this year. On Friday, the US Supreme Court said it would review next month the Colorado Supreme Court’s unprecedented decision to remove Trump from its state ballot.

Trump faces four counts from Smith’s election subversion charges, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.

Here’s what to know for Tuesday’s arguments:

A key question for Trump’s legal peril: District Judge Tanya Chutkan has declined to dismiss the election subversion charges against Trump, ruling that he does not have absolute immunity for what he said and did after the 2020 election.

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” Chutkan wrote. “Former Presidents enjoy no special conditions on their federal criminal liability.”

Trump appealed that decision to the appeals court. Trump’s attorneys have argued that his actions trying to overturn the 2020 election fell within his duties as president because Trump was working to “ensure election integrity” as part of his official capacity as president, and therefore he is immune from criminal prosecution.

Keep reading here.