Trump spoke after the hearing, describing it as a “momentous day.” “We have a great argument,” he said. DOJ, he said, conceded certain points that should have ended the case. He added that the prosecution by “Biden’s DOJ” was “very unfair.”
Trump also defended himself, saying he “did nothing wrong,” and emphasized the need to combat voter fraud.
“I feel that as a president you have to have immunity, very simple,” he said.
Judges Pan and Childs asked questions about the implications of Trump’s argument before Mr. Sauer asked the three-judge panel to reverse the lower court’s decision.
The hearing took roughly 75 minutes.
Mr. Sauer argued that Mr. Pearce forecasted a situation where the floodgates will be opened.
This DOJ’s prosecution was dangerous, he suggested, because it was a situation where the administration of Trump’s chief political opponent was prosecuting him.
That situation was “tailor-made,” he said, to produce “cycles of recrimination.”
Mr. Sauer urged the court to focus on constitutional provisions surrounding the immunity argument. The indictment didn’t reference anything after Trump left office, he said.
According to Mr. Sauer, the "frightening" future Mr. Pearce referenced is the one America has lived under for the last 235 years.
Judge Pan asked whether this case boil down to whether Trump was correct in interpretation of the impeachment judgment clause in Constitution?
Mr. Pearce agreed that was the main issue, saying that textual, structural, historical, and practical reasons pointed to Trump’s team being wrong.
Mr. Pearce referenced Judge Pan’s earlier hypothetical whether a president can use SEAL Team 6 to assassinate a political rival.
He said that and other hypotheticals represented an “extraordinarily frightening future.”
Even if a dismissal on jurisdiction might move the case faster, which would serve the special counsel's aims, that’s not the right analysis, Mr. Pearce said.
He asked the court to reach the merits of the case even amid doubts about jurisdiction.
Attorney James Pearce argued that the president has a unique constitutional law but is not above the law. The president didn’t enjoy immunity after leaving office, he said.
"Separation of powers principles, constitutional text, history precedent and other immunity doctrines all points to the conclusion that a former President enjoys no immunity from criminal prosecution," Mr. Pearce argued.
"At a minimum, this case in which the defendant is alleged to have conspired to overturn the results of a presidential election is not the place to recognise some novel form of criminal immunity."
Judge Florence Pan asked about balancing the need for presidential protection and public interest.
“It seems to me that there are some other article II interests here that are countervailing,” she said, noting the executive vesting clause and law enforcement.
President Trump’s position was not fully aligned with the institutional interests of the executive branch, she suggested.
Judge Childs asked about brief challenging Special Counsel Smith’s authority.
Mr. Sauer said it raises very “powerful questions” but his team hadn’t yet raised those.
Judge Karen Henderson raised a distinction between ministerial and discretionary acts outlined in the 1803 Supreme Court case of Marbury v. Madison.
Mr. Sauer responded that distinction has been held for subordinate officers. Nothing in this case can be remotely described as ministerial, Sauer argued. Even if that distinction goes up to the president, it wouldn’t save the indictment, he added.
Judge Henderson responded, saying Sauer was missing what she was asking. She said it’s “paradoxical” to say Trump’s constitutional duty to execute laws allowed him to violate criminal law.
Judge Michelle Childs noted that the DOJ’s indictment alleged Trump’s conduct was private rather than official acts.
Mr. Sauer, in response, argued DOJ’s legal theory was wrong and foreclosed by Supreme Court precedents.
Trump attorney Mr. Sauer argued that charging a president for his official conduct opens a “pandora’s box” for which this nation “may never recover.”
Judge Florence Pan asked whether a president could sell government secrets and avoid prosecution. She also asks whether a president can order SEAL Team Six to assassinate a political rival.
Mr. Sauer contended that a president should be impeached and convicted by Congress. The founders, he said, were worried about the abuse of the criminal process for political purposes. “That’s exactly what we see in this case,” he adds.
The Appeals Court hearing commenced with Trump attorney John Sauer defending the court’s jurisdiction to hear the appeal. An amicus brief had challenged this point.
The special counsel's office is represented by James Pearce.
President Trump has entered courtroom at the E. Barrett Prettyman federal courthouse in Washington just before oral argument is set to comment.
Special Counsel Jack Smith has arrived at the E. Barrett Prettyman courthouse in Washingron ahead of the appellate hearing in President Trump’s D.C. case.
A three-judge panel is set to hear former President Donald Trump’s appeal of a lower court decision rejecting claims that some of his actions on Jan. 6, 2021, were protected by presidential immunity.
Scheduled for Jan. 9, it’s the second major appeal of the Justice Department’s (DOJ) prosecution of President Trump in D.C. The former president will make an appearance at the hearing.
President Trump confirmed on Jan. 8 that he would attend, stating, “Of course, I was entitled, as President of the United States and Commander in Chief, to Immunity. I wasn’t campaigning, the Election was long over.”
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