A U.S. appeals court on Tuesday questioned Donald Trump's claims that he is immune from criminal charges for trying to overturn the 2020 election, and the former president threatened to prosecute Joe Biden if he returns to the White House.
Trump looked on as his legal team sought to convince a panel of three judges that former presidents should not be prosecuted for actions they took in office. Trump is due to go to trial in March on federal charges of election subversion.
The judges reacted skeptically to that argument.
"You're saying a president could sell pardons, could sell military secrets, could tell SEAL Team Six to assassinate a political rival?" Judge Florence Pan asked Trump lawyer D. John Sauer.
Sauer said that a former president could be charged for such conduct only if first impeached by the House of Representatives and convicted in the Senate.
After the hearing, Trump said he was the victim of political persecution and warned of "bedlam in this country" if the case is allowed to go forward.
"It's the opening of Pandora's box," he said at a hotel that he used to own near the courthouse. He did not respond when asked whether he would tell his supporters not to resort to violence.
Trump made a more pointed threat prior to the hearing, saying he might prosecute Biden, a Democrat, if he defeats him in the Nov. 5 presidential election.
"If I don't get immunity then crooked Joe Biden doesn't get immunity," Trump said in a video posted to social media. "Joe would be ripe for indictment."
U.S. prosecutors argue that Trump was acting as a candidate, not a president, when he pressured officials to overturn the election results and encouraged his supporters to march to the Capitol on Jan. 6, 2021 to pressure Congress not to certify Biden's victory.
Trump, who lost to Biden in the 2020 election, has opened up a commanding lead over his rivals for the Republican presidential nomination since the first criminal charge against him was announced last March.
The Republican state-by-state presidential nominating contest is due to kick off next Monday in Iowa and Trump is expected to easily win that contest.
LOOMING CRIMINAL TRIAL
The U.S. Justice Department has long held that presidents cannot be prosecuted while in office for doing their official duties. Trump, the first former U.S. president to be criminally prosecuted, faces 91 criminal counts in four separate cases.
Sauer, Trump's lawyer, told the judges on the U.S. Court of Appeals for the District of Columbia Circuit that allowing prosecution to go forward would lead to a cycle of retribution after each election.
He said presidents must first be impeached and removed from office by Congress before they can be prosecuted. Trump was impeached twice but the Senate failed to convict him.
Some Republican senators declined to convict him after he was impeached for trying to overturn the 2020 election, on the grounds that he could be held accountable in court instead.
'NOT ABOVE THE LAW'
The case against Trump reflects the unprecedented nature of his efforts to overturn the 2020 election and granting him immunity for those actions would give future presidents license to commit crimes, Justice Department lawyer James Pearce told the panel.
"The president has a unique constitutional role, but he is not above the law," he said.
Both the legal outcome and timing of the appeals court’s ruling will play a pivotal role in determining whether Trump faces trial ahead of the November election.
Smith has accused Trump of a multi-pronged conspiracy to hinder the counting and certification of his 2020 defeat, culminating in the Jan. 6 attack. Trump has pleaded not guilty to charges including defrauding the government and obstructing Congress.
The case is one of four criminal prosecutions Trump faces this year as he campaigns to win back the White House.
Trump's immunity claim has already been rejected by U.S. District Judge Tanya Chutkan, who is overseeing the case. The appeals court could take several weeks to rule.
Any ruling from the appeals court is almost certain to be appealed to the U.S. Supreme Court, which last month denied a request from Smith to immediately decide the issue.
Activity in the case has been halted in the meantime, which could delay the trial's scheduled March 4 start.
