Donald Trump is expected in federal court on Tuesday to argue that as a former US president he should be immune from prosecution on charges he conspired to overturn the 2020 election.
The frontrunner for the 2024 Republican presidential nomination is scheduled to go on trial on March 4 in a Washington courtroom just blocks away from the US Capitol stormed by his supporters on January 6, 2021.
Trump’s attorneys have sought to quash the election interference charges with the novel argument that a former president enjoys “absolute immunity” and cannot be prosecuted for actions he took while in the White House.
US District Judge Tanya Chutkan, who is to preside over the historic trial, rejected the immunity claim last month, saying an ex-president does not have a “lifelong ‘get-out-of-jail-free’ pass.”
Trump’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” Chutkan said.
Trump appealed the decision and a three-judge panel for the US Court of Appeals for the DC Circuit is to hear oral arguments in the case at 9:30 am (1430 GMT) on Tuesday.
Two of the judges were appointed by Democratic President Joe Biden while the third was named by Republican president George H.W. Bush.
Derek Muller, a law professor at the University of Notre Dame, said he believes Trump, the first former US president ever to face criminal charges, is unlikely to prevail in the immunity case.
“My sense is Trump is going to have an uphill battle,” Muller told AFP. “I think some of the claims he’s making are pretty broad.”
Trump, in a post on his Truth Social platform, said he would attend Tuesday’s hearing and warned that a rejection of his immunity defense could lead to indictments of Biden if he returns to power.
“The least I am entitled to is Presidential Immunity on Fake Biden Indictments!” the 77-year-old ex-president said.
“If I don’t get Immunity, then Crooked Joe Biden doesn’t get Immunity,” Trump said, claiming his 81-year-old Democratic opponent “would be ripe for Indictment.”
– ‘Fundamental question’ –
Special Counsel Jack Smith, who brought the election conspiracy case against Trump, had asked the US Supreme Court to take up the immunity claim on an expedited basis, bypassing the federal court of appeals.
“This case presents a fundamental question at the heart of our democracy: whether a former President is absolutely immune from federal prosecution for crimes committed while in office,” Smith said.
The special counsel has been trying to keep the March start date for Trump’s trial on track while lawyers for the former president have sought repeatedly to delay it until after the November 2024 election, widely expected to be a rematch between Trump and Biden.
The Supreme Court, which has a 6-3 conservative majority, including three justices nominated by Trump, denied Smith’s request to immediately hear the case.
The DC appeals court decision — wherever it lands — is nonetheless likely to wind up with the nation’s highest court eventually.
Last week, the Supreme Court agreed to hear Trump’s appeal of a ruling by Colorado’s highest court that would keep him off the presidential primary ballot in the western state.
The Colorado Supreme Court barred Trump last month from appearing on the primary ballot, citing a constitutional amendment which bars people from holding public office if they engaged in “insurrection or rebellion” after once pledging to support and defend the Constitution.
Trump was indicted in Washington in August for conspiracy to defraud the United States and obstruction for his efforts to upend the results of the 2020 election won by Biden.
He faces similar election-related charges in Georgia — where he has also claimed immunity — and has been indicted in Florida for alleged mishandling of top secret documents after leaving the White House.
Trump was impeached by the Democratic-majority House of Representatives following the attack on the Capitol for “incitement of insurrection” but was acquitted by the Senate.