A three-judge panel during a hearing Tuesday appeared broadly skeptical of former President Trump’s claims that he enjoys broad presidential immunity from prosecution on charges related to the 2020 presidential election.
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[T]he three-judge panel appeared poised to reject those arguments, warning that Congress may not always choose to impeach a president for unlawful conduct, and that such a stance would prohibit prosecutors from later acting on new evidence of crimes if it went unweighted by the Senate.
Trump attended the hearing in person before the District of Columbia Circuit Court of Appeals.
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At the courthouse, Trump spent the hour-plus argument largely staring ahead, making brief comments to his lawyers.
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Smith sat on the other side of the courtroom in the first row, behind the prosecution table, but did not interact with Trump and only occasionally looked over in his direction.
The Hill
The most standout moment for me was when the court pointed out that during Trump's impeachment trial, Trump's OWN LAWYERS argued that impeachment and conviction wasn't necessary because a president can be criminally prosecuted after he leaves office. The court thought that may have swayed some Senators to vote to acquit, because the check of criminal prosecution was always there. Trump's lawyer - Sauer - said he disagreed with the court's characterization of that argument. The court said "It's in the congressional record.
Also, the court brought up arguments made by Amici (briefs filed by non-parties), and they spent a long time on jurisdiction. Trump's lawyer's argued that the DC Circuit Court of Appeals DOES have jurisdiction - contradicting what American Oversight argued in their Amicus Brief. But when the court asked DoJ about it, the DoJ said they were NOT arguing jurisdiction. The court seemed confused by that because if the court dismissed on jurisdiction and remanded the case back down to Judge Chutkan - that would mean the DoJ would win here.
But DoJ argued that while it might make this go faster, "we are doing justice, and that means getting the law right." DoJ wants a decision on the merits now, so that Trump can't come back later with the same immunity argument after a conviction. I LOVE THIS! Yes, I want this to go faster, but it also has to be right.
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Then the court brought up the Judge Luttig et al Amicus and the executive vesting clause that says the president must leave office after four years. Trump's lawyer could only argue that the court should "balance" the executive vesting clause with the president's need to be able to act without fear of reprisal. The court argued back saying that the Article II considerations (executive vesting clause) and the public interest in law enforcement actually countervail the idea that prosecuting trump would somehow open a "pandoras box" of endless future prosecutions of presidents.
Mueller, She Wrote
The whole thing (audio only - no cameras are allowed in federal courts) is here. Interestingly, the panel consisted of three female judges. That must have gnawed at Trump's considerable gut.
The government's argument begins here. He might have wanted to say, "with respect, I disagree", rather than what he said to a judge who made a statement about what the Supreme Court said, which was, "No, I don't think the Supreme Court said that."
Continue reading for details.The most likely time horizons for the resolution of the appeal range from several weeks (February) to about four and a half months (middle of May), although longer delays are possible. With approximately three months of pre-trial proceedings still remaining, measuring from the point at which the stay of the trial was entered, that would result in the trial commencing between May and August. The trial itself is expected to take approximately 8-12 weeks.
Our analysis is based on the assumption that Trump will lose before the courts, given the weaknesses of his argument for immunity, and the question is how long it will take the judicial system to reach that final conclusion.
Just Security
...but hey, do what you want...you will anyway.
UPDATE 01/10/2024:
A very good explication of the hearing and the merits is laid out in an Atlantic article by George Conway.
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