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Trump and Smith: Reunited at the D.C. Circuit

Anna Bower
Wednesday, January 10, 2024, 11:21 AM
The former president shows up for his first D.C. Circuit argument.
E. Barrett Prettyman Federal Courthouse (Source: Wikimedia)

Published by The Lawfare Institute
in Cooperation With

It’s a rainy Tuesday morning, three years and three days after the attempted insurrection at the Capitol, and I’m sitting on a wooden pew in a courtroom at the E. Barrett Prettyman federal courthouse in Washington, D.C.

The atmosphere among the crowd packed into Courtroom 31 is boisterous, if something short of rowdy—which is not typical for arguments heard at the normally staid and decidedly nonboisterous U.S. Court of Appeals for the D.C. Circuit. Behind me, I overhear two members of the public congratulating themselves on the seats they nabbed next to the aisle. Good view of the defense table, one guy observes. “We should be able to see him—or maybe even smell him,” replies the other.

The “him” in question is the defendant-appellant in the case being heard today by a three-judge panel of the appeals court: Donald J. Trump, the former president of the United States and current front-runner for the Republican presidential nomination. In case you’ve been living in a cave and need background, Trump asserted immunity from charges in his federal election interference case and sought the case’s dismissal. District Judge Tanya Chutkan all but laughed at him. Trump appealed. The D.C. Circuit had the matter briefed within 26 days. We are now 33 days from Trump’s notice of appeal, and here we are at oral argument before an ideologically diverse panel of the court.

Several rows ahead of me sits the man leading the federal prosecutions against Trump: Special Counsel Jack Smith. Smith is joined by a large contingent of his Justice Department colleagues, including James Pearce, who is set to argue on behalf of the government at today’s oral argument. 

At approximately 9:25 a.m., the lively atmosphere quiets as Trump, clad in a navy suit and extra-long red tie, steps through a door to my right. As he takes a seat at the defense table next to his attorneys, John Sauer and Will Scharf, his entourage fills in the rows behind him. Among the entourage, I spot Walt Nauta, Trump’s personal valet and co-defendant in the U.S. District Court for the Southern District of Florida, where both men face charges in connection with Trump’s allegedly unlawful retention of classified documents. Boris Epshteyn, a lawyer and longtime Trump adviser, is also back there.

Several minutes later, Trump rises to his feet as a court officer shouts “Oyez, oyez, oyez!” and the trio of judges assigned to hear Trump’s case sweep into the room. Judge Karen LeCraft Henderson, who was appointed to the appeals court by President George H.W. Bush, claims the center position behind the bench. To her right sits Judge Florence Pan, a Joe Biden appointee who joined the court in 2022. Rounding out the panel is Michelle Childs, who—like Judge Pan—was also appointed to the D.C. Circuit by Biden.

Sauer, wearing a charcoal suit and glasses, strides to the lectern to argue the appeal on behalf of Trump. 

Judge Henderson, her voice barely above a whisper, starts off by announcing that she wants to “get a few things on the record.”

She observes that an amicus curiae—that is, an individual or group who is not a party to the case—filed a brief challenging the court’s jurisdiction. She’s talking here about a brief filed by American Oversight, which argues that the court doesn’t have the power to hear Trump’s appeal on an “interlocutory” basis, meaning before trial. 

According to American Oversight, the Supreme Court in a case called Midland Asphalt v. United States held that a trial court’s decision on whether to grant immunity from prosecution is not immediately appealable unless the purported immunity “rests on an explicit statutory or constitutional guarantee.” Applying this rule to Trump’s case, the brief observes that presidential immunity is not expressly set out in the text of the Constitution or statutory law. According to American Oversight, that means the court must follow the default rule that applies in most criminal cases: Trump’s appeal of the issue cannot be heard until after he is tried.

All of which is why Henderson first asks Sauer to clarify his position on the jurisdictional question raised by American Oversight.

In response, Sauer asserts that the court does have jurisdiction to hear the matter at this juncture.

Then Judge Childs pipes up: “I do want to speak to you a little bit more about jurisdiction,” she says. While acknowledging that the parties contend that the court does have jurisdiction to hear the appeal, Childs notes that it’s up to the panel of judges—not the parties to the case—to determine whether they can hear a case. To that end, she queries, what should the court make of the Supreme Court’s decision in Midland Asphalt?  

Sauer, in reply, claims that Trump’s interlocutory appeal falls within the rule set out in Midland Asphalt because the doctrine of presidential immunity arises “directly” from provisions of the Constitution—namely, the “plain language” of the Executive Vesting Clause and the Impeachment Judgment Clause.

Childs, apparently unsatisfied by this response, observes that the constitutional provisions cited by Sauer do not expressly establish immunity from prosecution for former presidents. By contrast, she notes, the Constitution’s Double Jeopardy Clause specifically prohibits an individual from being tried twice for the same crime.

Henderson, for her part, doesn’t seem convinced that Midland Asphalt controls whether the court can hear Trump’s appeal. She points out that the Supreme Court referred to the so-called explicit language rule set out in Midland Asphalt as a mere “suggestion” in a later opinion.

“That’s an excellent point,” Sauer tells Henderson.

Taking this as his cue, Sauer turns to the merits of Trump’s immunity argument. To authorize the prosecution of a president for his official acts “would open a Pandora’s box from which this nation would never recover,” he declares. To illustrate his point, Sauer articulates a series of hypotheticals: 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? Could President Barack Obama be charged with murder for allegedly authorizing drone strikes targeting citizens located abroad?

Judge Pan cuts him off. As she understands it, Sauer’s position is that a president is immune from criminal prosecution for official acts. She wants to explore the “implications” of that argument, she says. Could a president later be prosecuted for selling pardons or military secrets while in office if not impeached and convicted first? Could the Justice Department prosecute a former president who ordered SEAL Team 6 to assassinate a political rival?

Sauer tries to fight the hypotheticals, but Pan presses for a direct response. “I asked you a yes or no question: Could a president who ordered SEAL Team 6 to assassinate a political rival … be subject to criminal prosecution?” she asks.

“My answer is a qualified ‘yes,’” Sauer retorts.

Trump’s legal position, his counsel explains, is that a former president could be prosecuted in such circumstances only if the Senate convicted him for substantially similar conduct. The argument is rooted, in part, on the Constitution’s Impeachment Judgments Clause, which provides that a president who has been impeached and convicted by the Senate “shall nevertheless be subject to Indictment, Trial, Judgement, and Punishment, according to law.” The “negative implication” of this provision, according to Sauer, is that a president cannot be prosecuted without first being impeached.

The problem for Sauer is that this legal position requires him to concede that a U.S. president could murder his political rival without facing criminal consequences.

Pan and her colleagues appear bewildered by it all.

Now Childs jumps in to inquire about the potential scope of the court’s decision. If the panel determines that there is some type of immunity for a president’s official acts, does the court’s opinion need to address whether Trump’s alleged conduct in the indictment counts as “official,” as opposed to “private,” conduct?  

Sauer, in response, notes that the trial court judge, Judge Chutkan, did not reach the question of whether Trump’s conduct was “official” because she found that there is no such thing as absolute presidential immunity. As such, Sauer acknowledges, if the panel finds that former presidents are absolutely immune for official acts carried out during their tenure as president, then the court “absolutely” has discretion to send the case back to the trial court judge for additional findings on the nature of Trump’s conduct.

To that end, Sauer insists that the allegations in the indictment consist entirely of official acts. “The only way to even characterize them as private acts is to turn to the alleged motive or purpose,” Sauer explains. Citing the Supreme Court’s decision in Nixon v. Fitzgerald, he contends that Trump’s conduct must be evaluated objectively, without reference to his motive or purpose.

Henderson interjects to observe that in other contexts courts have further divided “official acts” into “ministerial” or “duty-bound” acts and “discretionary” acts. Federal courts have exercised jurisdiction over official acts that are “ministerial” in nature, meaning duties prescribed by law, Henderson explains. And the president, she observes, has a constitutional duty to “take care that the laws be faithfully executed.” Her point, it seems, is that a president is duty-bound to follow the law, meaning that he could be prosecuted for conduct that specifically violates individual criminal laws.

Sauer, naturally, disagrees. He tells Henderson that the president’s actions under the Take Care Clause are entirely “discretionary,” meaning he cannot be held liable for activity of that type.

But Henderson isn’t buying it. “I think it’s paradoxical to say that his constitutional duty to ‘take care that the laws be faithfully executed’ allows him to violate the criminal law,” she tells Sauer.

Sauer, having endured the grilling for more than half an hour, is finally done. On behalf of the special counsel’s office, James Pearce strides to the podium.

“Never in our nation’s history until this case has a president claimed that immunity from criminal prosecution extends beyond his time in office,” Pearce begins. But even the president, he continues, is not above the law.

Then Pearce shifts to the jurisdictional question raised by American Oversight. The special counsel’s position, he explains, is that the appeals court has jurisdiction to hear the case at this juncture. Echoing Judge Henderson, he notes that in the time since Midland Asphalt was decided, the Supreme Court has acknowledged that the idea of an “explicit guarantee” is “more of a suggestion than some sort of statutory prescription.”

Judge Pan jumps in to ask Pearce about the possibility that the court could exercise “hypothetical jurisdiction”—that is, even if the panel found that it did not have the power to hear the immunity issue, could the court still reach the merits of the question by assuming jurisdiction?

Pearce offers a way forward: The court could write an opinion observing that, while the jurisdictional question has good arguments on “both sides,” the panel chose to move forward on the merits of the immunity question.

Now Henderson shifts the conversation back to presidential immunity. Observing that criminal liability for former presidents would be “unavoidably political,” she asks Pearce how the court could write an opinion that would “stop the floodgates” of litigation.

Pearce, in reply, contends that the usual safeguards in the criminal process would be sufficient to avoid vexatious prosecutions. “But I also want to push back a little bit against this idea of a floodgate,” he adds. Since the Watergate era, he tells Henderson, there has been “widespread” recognition that former presidents are subject to prosecution. Here, the fact that this investigation resulted in charges doesn’t reflect that we are going to see a sea change of “vindictive, tit-for-tat” prosecutions in the future. Instead, he continues, it reflects the “unprecedented” nature of the charges levied against Trump.

At the defense table, Trump shakes his head in disagreement.

Next, Judge Childs pipes up to inquire, as she did with Sauer, about the scope of the court’s decision. Does the panel need to address whether Trump’s conduct was “official”? If so, how?

Pearce urges the court to approach the case as the district court did—that is, by finding that there is no immunity for a former president, full stop. But if the court does reach the question of whether Trump’s acts were “official,” he says, the special counsel’s view is that a “substantial” number of allegations in the indictment would fall outside the “outer perimeter” of the president’s official functions. That would be sufficient to affirm the district court’s decision, he says.

As to how the court should evaluate whether Trump’s conduct alleged in the indictment was “official,” Pearce urges the panel to depart from the purely “objective” assessment articulated in the context of civil immunity in Blassingame v. Trump. In the criminal context, he explains, motive or purpose matters in evaluating whether the alleged conduct was “official.”

With that, Pearce is done, and Sauer rises for his brief rebuttal. He has several points, he announces. First, he pushes back on Pearce’s contention that recognition of immunity in this case would put presidents “above the law.” He points to language in Nixon v. Fitzgerald, a case in which the Supreme Court recognized immunity for presidents in civil cases. In Nixon, Sauer notes, the Court described the allegation that immunity places the president “above the law” as “rhetorically chilling but wholly unjustified.” 

Turning to the question of whether Trump’s conduct can be characterized as “official,” Sauer points out that the conduct alleged in the indictment occurred during his time as president. That’s a “telling indication” that we’re dealing with official acts here, Sauer says. 

Finally, Sauer asserts that denying immunity for presidents in the context of criminal prosecutions threatens to open “the floodgates” of litigation. In this case, he tells the panel, you have a candidate for the presidency being prosecuted by the administration he seeks to replace. That is a “frightening future” made to “launch cycles of recrimination,” he warns. 

And the hearing is over. Trump, rising to his feet, stares at the trio of judges as they shuffle out of Courtroom 31. On the other side of the room, Smith chats jovially with his colleagues in the gallery, his back turned to Trump as the former president disappears through a door to my right.  

Anna Bower is Lawfare’s Legal Fellow and Courts Correspondent. Anna holds a Bachelor of Laws from the University of Cambridge and a Juris Doctorate from Harvard Law School. She joined Lawfare as a recipient of Harvard’s Sumner M. Redstone Fellowship in Public Service. Prior to law school, Anna worked as a judicial assistant for a Superior Court judge in the Northeastern Judicial Circuit of Georgia. She also previously worked as a Fulbright Fellow at Anadolu University in Eskişehir, Turkey. A native of Georgia, Anna is based in Atlanta and Washington, D.C.

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