“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 they were first impeached by the House of Representatives and convicted in the Senate.
After the hearing, Trump said that if his case is allowed to proceed that would potentially leave Biden open to prosecution once he left office.
“When they talk about a threat to democracy, that’s the real threat to democracy,” he said at a hotel that he used to own near the courthouse.
That comment fell short of the more pointed threat he made in a video prior to the hearing, where he said he might prosecute Biden, a Democrat, if he defeats him in the November 5 presidential election.
Trump on trial: do US presidents have immunity from the law?
Trump on trial: do US presidents have immunity from the law?
“If I don’t get immunity then crooked Joe Biden doesn’t get immunity,” Trump said. “Joe would be ripe for indictment.”
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. He is expected to easily win Monday’s contest in Iowa.
The US Justice Department has long held that presidents cannot be prosecuted while in office for doing their official duties. Trump, the first former US president to be criminally prosecuted, faces 91 criminal counts in four separate cases.
Sauer, Trump’s lawyer, told a three-judge panel of the US 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 and “open a Pandora’s Box from which that nation may never recover”.
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US former president Donald Trump pleads not guilty to 2020 election charges
US former president Donald Trump pleads not guilty to 2020 election charges
He said presidents must first be impeached and removed from office by Congress before he could 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.
US 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 January 6, 2021.
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 licence to commit crimes, Justice Department lawyer James Pearce told the panel.
US judge in Trump’s election case subject of apparent ‘swatting’ incident
US judge in Trump’s election case subject of apparent ‘swatting’ incident
“The president has a unique constitutional role, but he is not above the law,” he said.
Both the legal outcome and timing of the appeal court’s ruling will play a pivotal role in determining whether Trump faces trial ahead of the November 5, 2024, election.
Smith has accused Trump of a multipronged conspiracy to hinder the counting and certification of his 2020 defeat, culminating in the January 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 US District Judge Tanya Chutkan, who is overseeing the case. But it could take several weeks or months to be resolved on appeal.
Any ruling from the appeal court is almost certain to be appealed to the US 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.