Today, a federal appeals court in Washington, DC, will consider oral arguments regarding the potential dismissal of Special Counsel Jack Smith’s 2020 election case against Donald Trump, based on claims of presidential immunity.
Key Details:
Case Information: No. 23-3228, United States of America v. Donald J. Trump
Charges Against Trump: Special Counsel Jack Smith has filed criminal charges, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, and conspiracy against the right to vote. The charges relate to events following the 2020 election through January 6th, 2021, with Smith alleging actions undermining legitimate votes and disrupting the election results. Notably, no insurrection charge has been brought against Trump.
Defense Motion: Donald Trump’s legal team seeks dismissal based on presidential immunity. In December, the DC federal district court judge overseeing the trial rejected the dismissal request. Today’s hearing constitutes an appeal of that decision.
The question at hand is whether a former president retains immunity from federal prosecution for actions committed while in office. Traditionally, American jurisprudence acknowledges immunity from civil suits for decisions made during a president’s official capacity. The Department of Justice has consistently held the stance that a sitting president cannot face criminal charges.Donald Trump contends that all his actions until his last day in office were official acts. In contrast, Smith argues that during the post-election period and up to January 6th, Trump functioned as an office “seeker” rather than an “office” holder, challenging the typical protection. Constitutional scholars have expressed concerns about potential First Amendment implications, cautioning against the perceived government efforts to criminalize the former president’s speech.
The critical issue is whether Jack Smith’s election case against Trump will be dismissed due to presidential immunity. Currently in the pre-trial motions stage, the hearing addresses the fundamental question of whether the case should proceed, not the charges themselves.
As for the timeline of a decision, while the three-judge panel has no set deadline, there is an expectation of a swift opinion, considering the potential impact on the 2024 election. Smith advocates for expeditious proceedings, emphasizing the importance of maintaining the March 4th trial date. Conversely, Trump’s legal strategy revolves around delaying the trial until the appeals are resolved. If one side loses, there’s a likelihood of seeking an en banc review from the full DC federal appeals court or directly appealing to the US Supreme Court. However, the Supreme Court exercises discretion, accepting less than 1% of the cases submitted each year.
The legal representatives for the upcoming hearing are Dean Sauer, advocating for Mr. Trump, and DOJ’s James Pearce representing the US government.
The three-judge panel overseeing the arguments comprises Karen Henderson (Bush 1990 appointee), Michelle Childs, and Florence Pan (both Biden 2022 appointees).
Taking place in the US Court of Appeals for the District of Columbia, recognized as the second most influential court in the country after the US Supreme Court, notable alumni include John Roberts, Clarence Thomas, Brett Kavanaugh, Merrick Garland, Ken Starr, Ruth Bader Ginsburg, and Antonin Scalia.
Expected attendees include Mr. Trump and DOJ’s Michael Dreeben, a former member of Special Counsel Bob Mueller’s team during the investigation into Trump-Russia election collaboration, which resulted in no charges against the former President.
Taxpayer Expense: Jack Smith’s most recent financial report discloses that his election investigation into the former president has incurred a cost exceeding 12 million dollars. Appointed as special counsel in November 2022, the reported expenses extend through September 2023.
Procedural Details: The proceedings commence at 9:30 am, with the live stream accessible at this link. Each side is allocated 20 minutes for their oral arguments, but the hearing is anticipated to extend beyond that timeframe.
