OPINION: This article may contain commentary which reflects the author's opinion.
One of the three federal appeals court judges hearing arguments on Tuesday over whether Donald Trump as president is immune from prosecution over his actions about post-2020 election challenges pressed a prosecutor with special counsel Jack Smith’s team to answer a crucial question at one point during the hearing.
As reported by The Hill, Judge Karen Henderson questioned James Pearce, a prosecutor with Smith’s team, “over how the panel’s decision could prevent a torrent of legal matters brought against former presidents.”
“How do we write an opinion that would stop the floodgates?” she asked.
Pearce went on to argue that since the Watergate scandal involving then-President Richard Nixon, there has been “widespread societal recognition” that presidents are not immune from prosecution — though Nixon resigned from office and was never prosecuted for his alleged role in the scandal.
He also argued that the Biden administration’s investigations and prosecutions of Trump won’t mean a “seachange” of similar legal actions against future presidents. Rather, he claimed that Trump’s indictments merely reflect the “unprecedented nature” of the charges against him.
“Never in our nation’s history, until this case, has a president claimed immunity extends beyond his time in office,” Pearce said, though the Jan. 6 indictments stem from Trump’s time while still president. The charges against him involving his alleged improper retention of classified documents, however, fit Pearce’s argument, but that presumes that Trump’s actions violated federal law, including the broad powers he has to declassify documents under the Presidential Records Act.
At another point, Trump lawyer John Sauer pushed back on Judge Florence Pan after she “pointed out that Trump’s legal team made very different arguments when he was facing his second impeachment, saying that criminal prosecution lies with the courts,” The Hill reported.
He responded by saying whether a concession “may or may not have been made” at the time, it doesnt’ have any effect because the current proceedings are “very different.”
He also argued that allowing Trump to be prosecuted for the existing charges would have a “chilling effect” on future commanders-in-chief.
“If a president has to look over his shoulder or her shoulder every time they have to make a controversial decision and ask ‘Am I going to jail for this?’ That weakens the position,” he said.
Allowing presidents to be prosecuted for “official acts” could open a “Pandora’s box for which this nation may never recover,” he added.
President Biden appointed two of the three judges, and the late President George H. W. Bush appointed the third.
Former President Trump attended the hearing, giving reporters a statement following the proceedings at the Waldorf Astoria, where he argued that his legal team’s arguments went well in court.
“I think it’s very unfair when an opponent, a political opponent, is prosecuted. They’re losing in every poll. They’re losing in almost every demographic,” Trump said about Biden.
He said that the prosecution of him is a “threat to democracy” and added that he did “nothing wrong.”
The outcome of the arguments will have far-reaching consequences for the historic criminal case against Trump as well as for the larger, as-yet-untested subject of whether or not a former president can face charges for official actions taken while in office.
The United States Supreme Court, which last month turned down a request to intervene but might still do so in the future, will most likely hear additional appeals soon.
The case is currently on hold pending an appeal, but Smith and his team are eager to resume trial before the November election, so a quick decision is essential.
However, Trump’s legal team is aiming to do more than just have the case dismissed; they want to use an appeals process that could drag on for a long time, delaying the trial beyond its originally planned start date of March 4—possibly even until after the election.
