The consequences of Trump’s immunity court case

Good morning, Early Birds. The statue of William Penn in Philadelphia’s Welcome Park isn’t going anywhere — and neither is a much larger Penn statue atop City Hall. Look how big it is! The sculptor, Alexander Milne Calder, was the grandfather of Alexander Calder, whose works grace the Hart Senate Office Building and the National Gallery of Art.

Tips: [email protected]. Was this forwarded to you? Sign up here. Thanks for waking up with us.

In today’s edition … Release of the bipartisan border security framework is likely delayed … A look at the violent threats against members of Congress, state officials, local leaders and judges since 2020 … but first …

From the courts

The consequences of Trump’s immunity court case

Former president Donald Trump is expected to watch today as his lawyers try to convince three appeals court judges that he can’t be tried for his alleged role in the Jan. 6, 2021, attack on the Capitol and trying to overturn the 2020 election.

The outcome could have big implications for Trump — and future presidents. That’s because the case raises a novel issue for the courts, which have never before been asked whether a former president is immune from federal criminal prosecution.

Trump is hoping to avoid a trial in the 2020 election case, which was brought by special counsel Jack Smith. He’s accused of conspiring to overturn the 2020 election.

Trump is also facing political stakes, as he’s on track to become the Republican nomination for president.

“His choice to attend the argument — not uncommon but also not required in an appeal — instead of spending more time in Iowa just one week from the GOP’s first nominating contest there reflect the bet he and his campaign are placing on blending his criminal defense with electoral message. Tuesday’s appearance is poised to be the first of many times this year that he quickly pivots between the courtroom and the campaign trail or brings the campaign to the courthouse steps as he faces four separate criminal cases and two civil trials,” our colleague Isaac Arnsdorf reports.

Trump’s purpose in showing up in the courtroom is to show “seriousness and defiance” and garner media attention as he’s going on the offense, according to Isaac’s reporting.

To understand the legal aspects of the case, we picked the brains of our fantastic colleagues who cover the ins and outs of the Trump trials.

How the case came to be

Trump appealed the case to the U.S. Court of Appeals for the District of Columbia after U.S. District Judge Tanya S. Chutkan rejected his attempt to dismiss the case in December. The former president argued that he is immune from federal prosecution because he was president at the time of the alleged crime.

“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” Chutkan wrote in her decision. “No court — or any other branch of government — has ever accepted it. And this court will not so hold.”
Smith asked the Supreme Court to fast-track the case, but the court refused to do so. It didn’t explain why.

The arguments

The former president is arguing that he is immune from federal prosecution for his acts as president — and because he was not convicted in his impeachment trial, trying him now would amount to double jeopardy.

“Presidential immunity and the Impeachment Judgment Clause foreclose the criminal prosecution of President Trump for his official acts,” his lawyers argued in a brief to the court.

Smith argues that courts haven’t found that former presidents have immunity from criminal liability. And even if they do, Smith argues, it wouldn’t apply to Trump, who worked with private individuals and government officials to remain in power.

Smith has also argued that a lack of conviction in an impeachment trial does not limit Trump’s ability to be prosecuted. Trump was acquitted in his Senate impeachment trial.

A note on the impeachment standard

But about that impeachment argument … it’s complicated.

When Senate Republican Leader Mitch McConnell (R-Ky.) voted to not convict Trump in his trial, he said the courts would be the more appropriate venue for assessing the president’s actions.

“Impeachment was never meant to be the final forum for American justice,” McConnell argued at the time. “We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one.”

The judges

None of the judges on the panel, who are randomly assigned, were nominated by Trump.

Judge Karen L. Henderson was nominated by President George H.W. Bush and has served on the court since 1990. Reporters and legal watchers will listen to Henderson closely.

The other two judges on the panel, Florence Y. Pan and J. Michelle Childs, were nominated by President Biden and confirmed by the Senate in 2022.

Childs was in the running for former Supreme Court justice Stephen Breyer’s seat on the court. Rep. Jim Clyburn (D-S.C.) and Sen. Lindsey Graham (R-S.C.) urged Biden to choose Childs, who was a federal district court judge in South Carolina, but the appointment went to Justice Ketanji Brown Jackson. Biden nominated Pan for the seat vacated by Jackson.

Trump’s chances for success

Our colleague Devlin Barrett says it’s hard to say whether Trump’s legal arguments will hold sway. But he says this: “This appeals court has already found in a separate case that Trump is not immune to civil liability for his actions as a presidential candidate around Jan. 6, so it is hard to imagine they will find he has absolute criminal immunity.”

Another colleague, Spencer S. Hsu, adds that he’s watching what the judges say about each of the arguments raised by Trump.

For example, are they more concerned with Trump’s claim of presidential immunity or his double jeopardy claim that former president’s cannot be charged for conduct they have been impeached but not convicted of by the Senate?
How much credence do they give an argument raised by outside left-leaning analysts suggesting Trump cannot appeal the immunity issue before trial at all?

The timeline

Time is of the essence. Smith had hoped to begin the trial against Trump on March 4, but that could be delayed depending on the outcome and timeline of a decision in this case.

Because this is a new legal question and they know it will be reviewed by the Supreme Court, the judges will want to write a thoughtful, in-depth opinion, according to Supreme Court reporter Ann Marimow. She predicts that a D.C. Circuit decision will “take weeks — not days.”

But no matter the outcome of today’s proceedings, the Supreme Court is likely to have the last word.

“After the D.C. Circuit issues its ruling, either party can seek rehearing by a full complement of appeals court judges or go directly to the Supreme Court,” Ann adds.

The impact

While the outcome of this case will have huge consequences for the special counsel case, it could have implications in the Georgia case, too.

Trump filed similar claims in the Georgia case on Monday, where is charged with 13 counts related to an alleged conspiracy to overturn the 2020 election results in the state. If the Supreme Court finds that Trump was immune as president, that could affect the Georgia prosecution, even though he is charged with state crimes, Spencer notes.

And presidential immunity would not apply to the Florida case involving classified documents “because he was not president during the time of the alleged actions in the indictment,” our colleague Perry Stein says. It also won’t apply to the case in New York, which alleges that Trump paid hush money to adult actress Stormy Daniels.

What we’re watching

On the Hill

Austin fallout: We are watching continued fallout over Defense Secretary Lloyd Austin’s failure to disclose his hospital stay to the president, members of Congress and officials at the Pentagon.

Rep. Matt Rosendale (R-Mont.) is filing articles of impeachment. The top Republican on the House Armed Services Committee, Rep. Mike Rogers (Ala.), tweeted that he’s “quickly losing faith” in Austin’s ability to lead the Defense Department.

Austin was admitted to a hospital after a procedure on Jan. 1 and was discharged from the intensive care unit last night.

Border security framework probably delayed: Senate negotiators on border security said Monday night that a framework is unlikely to be released this week, which negotiators had suggested was likely as recently as this weekend. Disagreements remain on too many issues, including parole, which has been the most difficult part of already tough negotiations.

“We’ll continue to try and get this nailed down,” Sen. Chris Murphy (D-Conn.) told reporters, per our colleague Paul Kane.

Overseas

Secretary of State Antony Blinken is in Tel Aviv today as escalating tensions between Israel and the Lebanese militant group Hezbollah raise the specter of a full-scale regional war.

On Monday evening, Israeli Foreign Minister Israel Katz said in a televised interview that Israel had killed a top Hezbollah commander, Wissam al-Tawil, calling it “part of the war,” our colleague Annabelle Timsit reports. The targeted killing comes as Israel weighs launching a major military operation in Lebanon.

But as our colleagues John Hudson, Yasmeen Abutaleb and Shane Harris reported over the weekend, the Biden administration has privately warned Israeli officials against the escalation. Washington believes, based on a secret assessment from the Defense Intelligence Agency, that “it will be difficult for the Israel Defense Forces (IDF) to succeed because its military assets and resources would be spread too thin given the conflict in Gaza,” our colleagues report.

Follow The Post’s live updates.

The campaign

Violent political threats surge as 2024 begins, haunting American democracy

Our colleagues Sarah Ellison, Yvonne Wingett Sanchez and Patrick Marley take a lookat the violent threats and acts of intimidation against many government officials since the 2020 presidential election and its effect on American democracy.

Members of Congress, state officials, local leaders and judges have all been subjected to swatting, bomb threats and death threats.

Special counsel Jack Smith, who is overseeing the prosecution of Trump in two federal cases, was the target of an attempted swatting at his Maryland residence on Christmas Day, per NBC News’s Michael Kosnar and Zoë Richards. Chutkan, the judge presiding over Trump’s election subversion case, was the target of a similar incident on Sunday.

The targets of the threats share a common attribute: They have done or said something that has earned the ire of the former president, our colleagues write.

“I am really worried that there is going to be a tragedy,” Wisconsin Supreme Court Justice Jill Karofsky said in an interview with our colleagues. “I believe people when they say that they want to hurt us or kill us. I don’t think they’re idle threats.”