The arguments Trump’s attorneys are making to claim he’s immune from Jan. 6 prosecution

Amna Nawaz:

Donald Trump was in court in Washington, D.C., today, while his attorneys argued the former president is immune from federal prosecution connected to the January 6 attack on the U.S. Capitol.

Geoff Bennett:

The three-judge appeals panel seemed skeptical of the Trump legal team's argument that Trump was acting in his official capacity as president to — quote — "ensure election integrity" when he undermined the results of the 2020 presidential election.

Judge Karen Henderson, D.C. Circuit Court of Appeals: I think it's paradoxical to say that his constitutional duty to take care of that the laws be faithfully executed allows him to violate criminal laws.

Geoff Bennett:

NPR justice correspondent Carrie Johnson was at the courthouse today and is following all of the latest developments.

Carrie, thanks so much for being with us.

And we should say the case is not just about Donald Trump.It's about the presidency and the powers of the presidency. How did Mr. Trump's legal team argue that he should be immune from criminal charges related to his efforts to overturn the election? What was the case that made in court today?

Carrie Johnson, NPR:

Trump lawyer, John Sauer, made a number of arguments.

One is that the role of judges to review some of these issues should be, in his view, very limited. Another essential argument he made was that presidents can only be prosecuted if they have already been impeached and convicted by the U.S. Senate, even in the most extreme of circumstances.

And Sauer also pointed out that were these judges to disagree and open an avenue for criminal liability for former presidents, that that would open the floodgates to lots of recriminations and tit for tat from administration to administration of differing political parties.

Geoff Bennett:

And the judges peppered Trump's legal team with questions trying to test this immunity theory, with one judge asking if a president could order the killing of a political rival and get away with it as an official act.

Judge Florence Pan, D.C. Circuit Court Of Appeals:

Could a president who ordered Seal Team Six to assassinate a political rival who was not impeached, would he be subject to criminal prosecution?

John Sauer, Attorney For Donald Trump:

If he were impeached and convicted first.

Judge Florence Pan:

So your answer is no?

John Sauer:

My answer is qualified yes. There's a political process that would have to occur under our — the structure of our Constitution, which would require impeachment and conviction by the Senate.

Geoff Bennett:

So, Carrie, there's no precedent here.

Donald Trump is the first former president to face criminal charges. What will inform these judges' ruling?

Carrie Johnson:

Well, history is a guide here, Geoff.

No former president has been charged, but former President Richard Nixon did accept a pardon from his successor, Gerald Ford, which acknowledges some sense of criminal liability on his behalf and concern about potential criminal action.

And one of the judges in this case, Michelle Childs, also asked Trump's lawyer in this case why Trump's lawyer in the impeachment over January 6 conceded that he shouldn't be impeached there, but that there should be a role for the justice system to play criminally thereafter.

Judge Childs couldn't get the lawyer to understand the distinction there or acknowledge it. And so there is a real contradiction the judges were grappling with today over the sweeping nature of Trump's arguments versus the reality on the ground in some of these very extensive hypotheticals.

Geoff Bennett:

And, Carrie, you mentioned earlier that Trump's lawyers argued that prosecuting Mr. Trump would open a Pandora's box of inditing former presidents for actions they took while in office.

How did the special counsel's team respond to that argument in particular?

Carrie Johnson:

The special counsel lawyer, James Pearce, basically said, this has never happened before in a couple hundred years of American history. And the reason it's happened now is because of the unprecedented actions of former President Donald Trump, who now faces two federal indictments, this one in D.C. over January 6, and another in Florida over materials he allegedly refused to return to the FBI and stored at his resort in really unsecure areas of that facility, Mar-a-Lago.

And so James Pearce said that were the court to accept Trump's view of his sweeping power, even post-presidency, it would present a really frightening, astonishingly frightening future for the country, that presidents would have a license to commit crimes and get away with it, basically.

Geoff Bennett:

We should note that Donald Trump attended this hearing today. It's an indication of how his campaign strategy is intertwined with his court appearances.

You see a courtroom sketch of him there. What was it like inside the courtroom?

Carrie Johnson:

Yes, Trump entered a few minutes before the hearing began around 9:30.

He was relatively quiet. He wrote some notes to his attorneys. The only thing people could hear him say was "Should I sit here or is this where I sit?" to his legal team. And he held his fire until after he left the courthouse. He went to a hotel and then raised concerns about the political nature of his prosecution.

Of course, there's no evidence that the current president, Joe Biden, played any role in this case, none whatsoever.

Geoff Bennett:

And a ruling could come within days, as I understand it, from this three-judge panel. What happens next? The losing side appeals to the Supreme Court?

Carrie Johnson:

That's right.

But, in some ways, delay is Donald Trump's friend, even if he loses here. And so it matters how quickly the court directs him to act to take up an appeal either with a full D.C. Circuit Appeals Court or at the Supreme Court. Remember, this trial was set to start March 4. That seems unlikely now. But prosecutors do want to get it going before the election.

And how quickly the appeals court rules and what they say Trump can and can't do next could determine whether Trump faces any trials before November.

Geoff Bennett:

NPR's Carrie Johnson.

Always a pleasure to speak with you, Carrie. Thanks so much.

Carrie Johnson:

Thank you.