Donald Trump in Iowa, January 2024. Photo: TANNEN MAURY / AFP
A Washington appeals court on Tuesday questioned Donald Trump's claims that he is immune from criminal charges for trying to overturn the 2020 election, as the former US president 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.
The judges reacted sceptically 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.
After the hearing, Trump said that if his case is allowed to proceed that would potentially leave Biden open to prosecution once he left office.
"When they talk about a threat to democracy, that's the real threat to democracy," he said at a hotel that he used to own near the courthouse.
That comment fell short of the more pointed threat he made in a video prior to the hearing, where he said he might prosecute Biden, a Democrat, if he defeats him in the 5 November presidential election.
"If I don't get immunity then crooked Joe Biden doesn't get immunity," Trump said in that video. "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.
The Republican state-by-state presidential nominating contest is due to kick off next Monday in Iowa, and Trump is expected to easily win.
Pandora's box
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.
Joe Biden. Photo: JIM WATSON / AFP
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 6 January, 2021.
'Not above the law'
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 licence 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 November 2024 election.
Smith has accused Trump of a multi-pronged conspiracy to hinder the counting and certification of his 2020 defeat, culminating in the 6 January 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. The appeals court takes several weeks to rule.
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 4 March start.
- This story was first published by Reuters