Luckily, Donald Trump owns a plane; the man is currently traveling a lot. At the caucus in Iowa next Monday, Trump wants to show what a huge lead he has among the Republican presidential candidates. Before that, he does a bit of campaigning in the snow-covered state – and in between, the election campaigner becomes a regular guest at the judiciary again. On Tuesday morning, in this role, he first stopped by rainy Washington.
There, between the White House and the Capitol, is the Federal Appeals Court. Trump returned to the crime scene as the silent protagonist of this hearing, so to speak: on January 6, 2021, shortly before the change of office, he was still in power in the Oval Office after previously losing to Joe Biden. At the same time, the loser incited his supporters at a large demonstration to ignore the defeat, whereupon hooligans stormed the domed building on Capitol Hill.
The accusation: alleged call for conspiracy
In the US capital, Trump is therefore accused of alleged calls for conspiracy and attempting to overturn the 2020 election results. The prosecutor is special prosecutor Jack Smith appointed by Biden’s Justice Department. Trump, his lawyers and his fans, however, are of the opinion that it is a maneuver by the Democrats: the defendant should not be allowed to be a defendant at all, so the argument goes, because he enjoys immunity from his time in the highest office of the state.
That’s what this hearing at the E. Barrett Prettyman Federal Courthouse was all about. Trump, who would like to be president again in a good year, is demanding “absolute immunity” as a former president, as his lawyer John Sauer calls it. The current demand concerns this procedure because of the storming of the Capitol. The trial is scheduled to begin here in Washington on March 4, but could be delayed by Trump. If he were to get through with his arguments, it could potentially undermine other lawsuits against him.
Trump’s army of lawyers cites, among other things, a 1982 decision by the Supreme Court, which, by a vote of 5:4, guaranteed former President Richard Nixon this “absolute immunity” for his era in service. Trump’s representatives believe that the president’s unique role within the framework of the Constitution should guarantee him this. In response, special investigator Smith’s team points out that the Supreme Court clearly rejected Nixon’s preferential treatment in criminal cases in the wake of the Watergate affair in 1974.
Counter-question: Can a US president then have opponents murdered with impunity?
Both sides know what is at stake. It’s about the responsibility of the top Americans. If a president were allowed to be prosecuted for his official actions, then Pandora’s box would be opened, says Trump’s lawyer Sauer. He asked whether George W. Bush could be impeached for false pretexts for the Iraq War or Barack Obama for alleged drone attacks on US citizens abroad.
Judge Florence Pan countered with a different hypothesis. She asked whether a president could order a special unit to assassinate a political opponent. That would also be an official act. Whether he could not be charged in this case. Trump lawyer Sauer believes that impeachment, a conviction by Congress, must always precede an indictment.
But impeachment proceedings against Trump failed thanks to his supporters. Mitch McConnell, the Republican Senate majority leader (and Trump critic), said in 2021 that former presidents are not immune from being held accountable in criminal or civil courts. Trump is “morally and practically” responsible for the violent events of January 6th: “The people who stormed that building believed they were acting at the request and direction of their president.”
An assistant from special counsel Smith’s office said he thought it would be “terribly frightening” if such cases couldn’t be prosecuted. Even Judge Karen Henderson, once appointed by the Republican Bush, would find it “paradoxical to say that his constitutional duty to see that the laws are faithfully carried out allows him to violate the criminal law.”
After 75 minutes the hearing was over. We’ll see how the court decides; it seems to be skeptical about Trump’s claim to complete impunity. In addition, the Supreme Court is just around the corner to decide whether Trump can be removed from electoral rolls because of his alleged contribution to the insurrection. The defendant will also be back at the fraud trial in New York on Thursday; a verdict there could mean the end of his business in his hometown. And on Wednesday and weekend he flies to Iowa to keep his Republican rivals Ron DeSantis and Nikki Haley at bay. His Boeing 757 is ready.