Judge Uses Trump's Own Words Against Him in Immunity Hearing

A judge used former President Donald Trump's past legal arguments against him during a hearing to evaluate his claims of presidential immunity in his federal election interference case Tuesday morning.

Department of Justice (DOJ) Special Counsel Jack Smith last year charged Trump with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights in connection to the investigation. The charges were over the riots at the U.S. Capitol on January 6, 2021, and the alleged plot to submit false slates of pro-Trump electors to the Electoral College. Trump maintains his innocence and has pleaded not guilty to all charges, accusing prosecutors of targeting him for political purposes.

Trump has sought to make the case that presidential immunity would shield him from being tried for these charges, as he argued a former president cannot be charged for official actions. Critics who doubt his argument will be successful say he was acting as a candidate, not in his official duty, when allegedly working to thwart the election results.

A federal appeals court heard Trump's immunity case Tuesday morning when Judge Florence Y. Pan questioned Trump's attorney D. John Sauer about an argument made to defend Trump during his impeachment trial following the January 6 riot, when a group of his supporters violently protested the election results.

Newsweek reached out to Trump's campaign for comment via email.

"There is a quote in the Congressional record, in which your client said, through counsel, no former office holder is immune from investigation or prosecution," Pan said during the hearing.

Although Sauer was not working for Trump at the time, former Trump lawyer David Schoen argued at the time that the Constitution said "a convicted party following impeachment shall nevertheless be liable to indictment and punishment" while arguing the impeachment trial was unconstitutional.

"Clearly, a former civil officer who is not impeached is subject to the same," Schoen argued in 2021. "We have a judicial process in this country. We have an investigative process in this country to which no former officeholder is immune. That's the process that should be running its course."

Sauer responded to Pan's question saying that is true of "subordinate officers" but that "principle officers" including the former president are "immune unless he is impeached and convicted."

However, Pan continued to probe him about the argument.

"He was president at the time, and his position was that no former officeholder is immune. And in fact, the argument was there's no need to vote for impeachment because you have this backstop, which is criminal prosecution, and it seems that many senators relied on that in voting to acquit," Pan said.

Sauer said Pan's assessment of the argument swaying senators to acquit Trump "relies on speculation."

The court heard arguments for more than an hour Tuesday morning, with the judges expressing some skepticism toward Trump's attorneys' claims. They agreed to reserve judgment and could release a decision on his immunity in the coming weeks. That decision may then end up being appealed to the Supreme Court ahead of the election interference trial, which is scheduled to begin March 4.