The court’s decision could have an impact on the 2024 election

Today, a DC federal appeals court will hear oral arguments on whether Donald Trump is entitled to dismissal of Special Counsel’s Jack Smith’s 2020 election case against him because of presidential immunity.

The Case: No. 23-3228, United States of America v. Donald J. Trump

Special Counsel Jack Smith has brought the following criminal charges against Mr. Trump: Conspiracy to defraud the United States, conspiracy to obstruct and obstruction of an official proceeding, and conspiracy against the right to vote and to have one’s vote counted. The charges stem from what happened in the weeks that followed the 2020 election through January 6th, 2021, behavior that Smith characterized as discounting legitimate votes and subverting the election results. Notably, Smith did not bring a charge of insurrection against Mr. Trump. Mr. Trump’s defense team moved to have the case dismissed claiming presidential immunity. In December, the DC federal district court judge overseeing the trial denied the dismissal request. Today’s hearing is an appeal of that decision.

The issue: Whether a former president is immune from federal prosecution after leaving office for acts committed while in office. Immunity from civil suits for decisions while serving in an official capacity as President of the United States has long been recognized in American jurisprudence; additionally, it has been the practice of the Department of Justice that a sitting president cannot be criminally charged. Mr. Trump has consistently argued that all of his actions through his last day in office were official acts; Smith has asserted that in the weeks after the election and through January 6th, Mr. Trump was acting as an office “seeker” and not an “office” holder and thus is not afforded the usual protection. Some constitutional scholars have also raised First Amendment alarm bells on the dangers of what they believe appears to be the government attempting to criminalize the speech of the former president.

What’s at stake: Whether Jack Smith’s election case gets thrown out against Trump because of presidential immunity. We are still in the pre-trial motions stage of this case, meaning the hearing is not on the actual substance of the case – the charges themselves – but whether the case should be heard at all.

How quickly can we expect a decision? While there is no deadline for the three-judge panel to rule, expectations are they will render an opinion quickly, given their decision’s impact on the 2024 election. Smith has continuously argued for a fast-tracking of this case, making it clear he wants the March 4th trial to stand. The Trump team strategy has been to delay since the March 4th trial cannot go forward until the appeals happen and are resolved in one way or another. It is likely that the side that loses will either ask for an en banc review (full DC federal appeals court) or directly appeal to the US Supreme Court. The US Supreme Court has full discretion as to which cases it takes and doesn’t take, accepting less than 1% of the cases submitted to them each year.

The attorneys: Dean Sauer will argue for Mr. Trump; DOJ’s James Pearce will appear on behalf of the US government.

The judges: Arguments will be heard before a three-judge panel: Karen Henderson (Bush 1990 appointee), Michelle Childs (Biden 2022 appointee) and Florence Pan (Biden 2022 appointee).

The court: The US Court of Appeals for the District of Columbia is considered the second most powerful court in the country, following the US Supreme Court. John Roberts, Clarence Thomas, Brett Kavanaugh, Merrick Garland, Ken Starr, Ruth Bader Ginsburg, and Antonin Scalia are some notable DC Circuit judge alums.

In attendance: Mr. Trump is expected to attend; DOJ’s Michael Dreeben may also be sitting at the government’s counsel table. Dreeben was a member of Special Counsel Bob Mueller’s team, an investigation against then-President Trump regarding a false Trump-Russia election collaboration that resulted in no charges against the former President.

Cost to taxpayers: In his latest expenditure report, Jack Smith revealed his election investigation into the former president has cost taxpayers over 12 million dollars thus far; Smith was appointed special counsel in November 2022 – his latest report accounts for expenses through September 2023.

Nuts & bolts: Arguments begin at 9:30 am and oral arguments will be live-streamed at this link. Each side will be given 20 minutes to present their arguments, but the hearing is expected to last longer than that.