While the prosecutors described those steps as crimes, Trump’s lawyers attempted to reframe them as examples of the former president performing his official duty to protect the integrity of the election.
In his brief to the appeals court, Sauer argued that executive immunity must exist, given the fact that no president or former president had ever been charged with a crime before Trump.
“The unbroken tradition of not exercising the supposed formidable power of criminally prosecuting a president for official acts — despite ample motive and opportunity to do so, over centuries — implies that the power does not exist,” he wrote.
Sauer went on to claim that the trial judge, Tanya Chutkan, had erred in several ways when she decided the issue against Trump at the beginning of the month. In an order rejecting Trump’s immunity claims, Chutkan upheld a limited vision of presidential power, writing that there was nothing in the Constitution or America’s founding documents that supported the idea that a former commander in chief should not be subject to federal criminal law.
Chutkan had argued, for example, that Trump should not enjoy “a lifelong ‘get-out-of-jail-free’ pass,” and that, despite his former role as president, he should still be “subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”
But Sauer maintained that executive immunity was not meant so much to shield a president — or a former president — from legal responsibility, but rather to prevent a leader from falling prey to false accusations lodged by political enemies. He also said that the only way a former president could be subject to prosecution would be if he had been first impeached and convicted of similar offences by Congress.
The immunity case is being heard by a panel made up of Judge Karen L. Henderson, who was appointed by president George H.W. Bush, and Judges Florence Y. Pan and J. Michelle Childs, who were both appointed by President Joe Biden.
The judges have agreed to work exceptionally quickly, setting out an expedited schedule for the case at Smith’s request. All written briefs are required to be filed by January 2. The court intends to hold oral arguments January 9.
On its own, the fact that the court ordered Trump’s lawyers to file their papers on the Saturday before Christmas suggests just how fast the appellate judges plan to move. Smith’s office is scheduled to file its own papers in the case the Saturday before New Year’s Eve.
The struggle between the defence and the prosecution over the speed of the appeal has been just as — or perhaps even more — contentious than the battle over the underlying legal issues. That is largely because Chutkan has put the case on hold as the appeal is being heard, imperilling the trial’s start date of March 4.
If the trial were to be pushed into the summer, it would coincide with the homestretch of Trump’s presidential campaign. Obliged to be in Washington each weekday for two or three months, the former president would almost certainly bring his campaign to the courthouse steps, turning the proceeding into even more of a media circus than it already promises to be.
The schedule of the election subversion trial in Washington could also have a significant impact on the timing of Trump’s three other criminal cases. It has been a challenge to find time on the calendar for each of the proceedings in relation to one another, as well as against the backdrop of the campaign.
Aside from the trial in Washington, Trump is also facing a trial in New York City on charges related to hush money payments to a porn actress in the run-up to the 2016 election; in Florida on charges of illegally holding on to dozens of classified documents after leaving office; and in Georgia, where he stands accused in a racketeering indictment of tampering with that state’s election.
While Smith’s prosecutors have never explicitly expressed concerns about that scenario, or the one in which Trump becomes president and orders the charges dropped, they have sought to use every lever at their disposal to keep the trial on schedule.
One of their boldest moves was their request last week to the Supreme Court to bypass the appeals court and return its own speedy decision on the immunity issue. While the justices declined to take the case for now, they may have a second opportunity to consider it after the appeals court renders its decision.
This article originally appeared in The New York Times.
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