Here is some of the legal news making the headlines this week:
A panel of the D.C. Circuit Court of Appeals heard oral arguments on former President Donald Trump’s claims of absolute immunity in his election subversion criminal prosecution.
- All three judges on the panel indicated that they were likely to rule against Trump. The panel included Judges Karen Henderson, Florence Pan, and J. Michelle Childs. District Judge Tanya Chutkan already ruled against Trump, which led to this appeal. Special Counsel Jack Smith had asked the Supreme Court to expedite review of the matter, but the justices declined to intervene for now.
- At the hearing, Trump’s lawyer, D. John Sauer, argued, among other things, that “authoriz[ing] the prosecution of a president for his official acts would open up Pandora’s box from which this nation may never recover.” Sauer also argued that impeachment and conviction by Congress is a prerequisite for a president to face criminal prosecution. Here, Sauer continued, since Trump was acquitted by the Senate for his conduct in connection with the January 6 Capitol riot, the criminal charges brought against Trump constitute a violation of his constitutional protection against double jeopardy.
- Assistant special counsel James Pearce argued against the notion that prosecuting a former president would open a “floodgate” of criminal charges against political opponents. Pearce said, “Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, tried to fundamentally subvert the democratic republic and the electoral system. And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that — criminally.”
- All three judges also pushed back against Sauer’s claims, including Judge Pan, a Joe Biden appointee, who posed several hypothetical scenarios. Pan asked, “Could a president order SEAL Team Six to assassinate a political rival? That is an official act, an order to SEAL Team Six?” Sauer ultimately concluded that the president would need to be “impeached and convicted” before prosecutors could bring criminal charges. Pan also raised hypothetical scenarios involving a president selling pardons or selling military secrets to foreign nations.
- Judge Henderson, a George H.W. Bush appointee, questioned whether Trump’s efforts to overturn the presidential election results were part of his official duties as president. Henderson said, “I think it is paradoxical to say that his constitutional duty to take care…the laws be faithfully executed allows him to violate criminal law.”
Trump is also seeking to dismiss the criminal charges against him in Fulton County, Georgia.
- On Monday, Trump filed a series of motions to dismiss the charges, citing presidential immunity, double jeopardy violations, and infringement of due process rights. The arguments presented in Georgia closely resemble those made by Trump in his efforts to dismiss the federal charges.
- Arguing in support of presidential immunity, Trump’s attorney, Steven Sadow, wrote that “The indictment in this case charges President Trump for acts that lie at the heart of his official responsibilities as President.” The indictment accuses Trump of attempting to overturn the results of the 2020 presidential election by, among other things, asking Georgia Secretary of State Brad Raffensperger to “find” more Trump votes and organizing an alternate slate of presidential electors to cast electoral votes for Trump in states that he lost, including Georgia.
- In the double jeopardy filing, Sadow argued that “the indictment must be dismissed because President Trump was impeached, tried by the Senate, and acquitted on articles of impeachment that arise from the same alleged facts and course of conduct as the criminal indictment in this case.” However, legal experts have pointed out that even if congressional impeachment and acquittal would bar federal prosecution, under the “dual sovereignty” doctrine, state governments may prosecute a defendant even if the individual faced federal proceedings for the same conduct. The Supreme Court has written that “where there are two sovereigns, there are two laws, and two ‘offences.’”
- Lastly, Sadow argued that “President Trump lacked fair notice that his advocacy in the instance of the 2020 Presidential Election could be criminalized,” in violation of his due process rights. Sadow emphasized that “the alleged criminal conduct underlying this indictment consists entirely of core political speech at the zenith of First Amendment protections.”
- In other Fulton County news, Trump co-defendant Mike Roman asked the judge to disqualify DA Fani Willis and special prosecutor Nathan Wade from prosecuting the case, arguing in a court filing that the pair engaged in a “clandestine” relationship and “profit[ed] significantly” from the prosecution. The court filing cited no evidence for the claims—it only mentioned “information obtained outside of court filings.”
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