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      Judges Lean Toward Rejecting Trump’s Immunity Claim in Court

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      The judges seem likely to reject a key element of Trump’s defense in the election case.It looks like Donald Trump ran into a wall today while pushing his position that he cannot be charged criminally for his efforts to remain in power after losing the 2020 election. It came in the form of three federal appeals court judges.With Trump looking on from beside his lawyers in the courtroom in Washington, the judges poked holes in the legal reasoning behind his claims that presidents cannot be prosecuted for actions they take in office. By the time they were done, there was not much doubt they were leaning toward rejecting this central element of Trump’s defense in the election subversion case.“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” said Judge Karen Henderson, the lone Republican appointee on the three-judge panel hearing the arguments.The court seemed especially dismissive of an assertion by Trump’s lawyer, D. John Sauer, that the only way to hold a president accountable for crimes was to first secure a conviction in an impeachment proceeding.“I’m asking a yes or no question: Could a president who ordered SEAL Team 6 to assassinate a political rival, who was not impeached, would he be subject to criminal prosecution,” asked Judge Florence Pan.“If he were impeached and convicted first,” Sauer replied — a response that amounted to an audacious “no.”How expansively the judges might rule on the issue of presidential immunity remains to be seen.The matter is almost certain to land in the lap of the Supreme Court, which is already scheduled to take up a separate case next month on whether Trump can be disqualified from state ballots for his role in encouraging the Jan. 6 attack on the Capitol.No cameras, no showTrump’s motorcade arriving at the courthouse today.Jason Andrew for The New York TimesThe day did not go terribly well either for Trump’s attempt to turn the appeals proceeding into a bit of political theater, counter-programming to the more traditional campaigning underway in Iowa, where the caucuses will get the 2024 voting underway in less than a week.He did not have to attend the hearing — indeed, it is unusual for any defendant, much less a former president, to be present for appeals court arguments. But Trump chose to do so as part of his accelerating effort to cast all of the legal cases against him as politically motivated, a recurring theme that he has used to rally support as the Republican primary season gets underway.In this case, though, the protocols of a federal courthouse worked against him — no cameras were allowed, for starters — and his brief post-hearing appearance took place with little notice to journalists at the downtown hotel that he owned during his presidency but then sold after leaving office.Instead, it was the appeals court judges who got the headlines, especially Judge Pan, whose probing of Trump’s immunity claim led to the hypothetical situation that even non-lawyers could grasp onto: What if a president ordered Navy commandos to carry out the killing of a rival politician?Sauer, the former president’s lawyer, responded that a president who did such a thing would surely be impeached and convicted. And yet, remarkably, he insisted that the courts would have no jurisdiction to take matters into their own hands and oversee a murder trial unless there was a guilty verdict during the impeachment case.To rule otherwise, he said, would open the door to the routine prosecutions of former presidents whenever the White House changes partisan hands. (He did not mention that Trump, calling on the campaign trail for “retribution” against his opponents, has already repeatedly hinted that he would do just that if he takes power again.)A ‘frightening future’Trump supporters outside the courthouse in Washington.Valerie Plesch for The New York TimesJames Pearce, a lawyer for the special counsel Jack Smith, seemed horrified by Sauer’s argument, pointing out that, under his theory, presidents could literally get away with murder if they simply resigned before impeachment charges were brought. Advocating for that sort of unbounded version of presidential immunity wasn’t just wrong, Pearce said, but also a vision for “an extraordinarily frightening future.”Pearce further rejected the idea that allowing the case to go forward would be a “sea change” that would open the door to “vindictive tit-for-tat prosecutions in the future.” Instead, he reminded everyone in court, Trump was the first former president in American history ever to be charged with crimes, underlining the “fundamentally unprecedented nature” of the Trump prosecutions.“Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system,” he said.“Frankly if that kind of fact pattern arises again,” Pearce went on, “I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”While the appeals court rushed through the holiday season to be ready for today’s hearing, it’s not clear when the panel will hand down its ruling. Depending on its outcome, either Trump or prosecutors could appeal it. The case could be challenged in front of the full court of appeals — all 11 active judges — or directly to the Supreme Court.Either one of those courts could decide whether to take up the matter or decline to get involved and leave the ruling by the panel in place.How quickly all of this plays out could be nearly as important as the ultimate result. After all, the trial judge, Tanya Chutkan, has frozen the underlying case until the immunity issue is resolved. For now, the case is set to go in front of a jury in early March, but protracted litigation could push it back — perhaps even beyond the November election.If that were to happen and Trump were to win the election, he could try to pardon himself or otherwise use his control of the Justice Department to end the case against him.Your questionsWe’re asking readers what they’d like to know about the Trump cases: the charges, the procedure, the important players or anything else. You can send us your question by filling out this form.What impact does the Supreme Court cases have on the Georgia trial? — Matt Brightwell, York, South Carolina.Alan: The Supreme Court’s ultimate decision on Trump’s claims of immunity in the federal case accusing him of seeking to overturn the 2020 election could affect the similar state criminal charges in Georgia. This week, in fact, his Georgia lawyer raised an immunity defense against that indictment that was very close to the one his lawyers in Washington are trying. If the Supreme Court ends up considering the immunity defense, it could have a direct effect on the defense in Georgia. But there’s one caveat: the defense the Supreme Court is likely to review is specifically geared toward shielding Trump from federal charges.Where does each criminal case stand?Trump is at the center of at least four separate criminal investigations, at both the state and federal levels, into matters related to his business and political careers. Here is where each case currently stands.The New York TimesWhat to watch next weekA trial to determine how much money Trump will have to pay the writer E. Jean Carroll after being found liable for defaming and sexually abusing her begins on Tuesday, one day after the Iowa caucuses.On the same day, Trump’s lawyers are scheduled to file court papers asking for additional discovery in the Florida classified documents case. The papers will give a sense of how he intends to defend himself against charges that he illegally held on to dozens of highly sensitive national security records and then obstructed the government’s efforts to get them back.More Trump coverageA woman praying during a Trump rally in Iowa.Jordan Gale for The New York TimesWhite evangelical Christian voters have lined up behind Republican candidates for decades, but no Republican has had a closer relationship with evangelicals than Trump.In a speech in Iowa on the third anniversary of the Jan. 6 attack, Trump said those who stormed the Capitol had acted “peacefully and patriotically.”Trump’s escalating attacks on Nikki Haley captured the turbulent dynamics ahead of the first votes of the 2024 Republican presidential primary.Trump pressured state and federal officials to overturn results of the 2020 election in more than 30 phone calls or meetings, according to a Times analysis. See a timeline of events.Thanks for reading the Trump on Trial newsletter. See you next time. — Alan and MaggieRead past editions of the newsletter here.If you’re enjoying what you’re reading, please consider recommending it to others. They can sign up here. More

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      5 Takeaways From the Appeals Court Hearing on Trump’s Immunity Claim

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      A three-judge panel of the federal appeals court in Washington heard arguments on Tuesday in a momentous case over former President Donald J. Trump’s claim that he is immune from criminal charges for the efforts he took to overturn the 2020 election.A ruling by the court — and when it issues that decision — could be a major factor in determining when, or even whether, Mr. Trump will go to trial in the federal election case.Here are some takeaways:All three judges signaled skepticism with Trump’s position.The judges on the Court of Appeals for the District of Columbia Circuit appeared unlikely to dismiss the charges against Mr. Trump on grounds of presidential immunity, as he has asked them to do. The two Democratic appointees on the court, Judge J. Michelle Childs and Judge Florence Y. Pan, peppered John Sauer, a lawyer for Mr. Trump, with difficult questions.Judge Karen L. Henderson, the panel’s sole Republican appointee, seemed to reject a central part of Mr. Trump’s argument: that his efforts to overturn his loss to President Biden cannot be subject to prosecution because presidents have a constitutional duty to ensure that election laws are upheld.“I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate the criminal law,” Judge Henderson said.U.S. District Court via Associated PressStill, Judge Henderson also expressed worry that allowing the case to proceed could “open the floodgates” of prosecutions of former presidents. She raised the possibility of sending the case back to the Federal District Court judge overseeing pretrial proceedings, Tanya S. Chutkan, for greater scrutiny of how to consider Mr. Trump’s actions.A lawyer for Trump took a sweeping position on a hypothetical assassination.Judge Pan asked Mr. Sauer to address a series of hypotheticals intended to test the limits of his position that presidents are absolutely immune from criminal prosecution over their official acts, unless they have first been impeached and convicted by the Senate over the same matter.Among them, she asked, what if a president ordered SEAL Team 6, the Navy commando unit, to assassinate a president’s political rival? Mr. Sauer said such a president would surely be impeached and convicted, but he insisted that courts would not have jurisdiction to oversee a murder trial unless that first happened.To rule otherwise, Mr. Sauer said, would open the door to the routine prosecutions of former presidents whenever the White House changes partisan hands.U.S. District Court via Associated PressA prosecutor argued that absolute immunity would be ‘frightening.’Picking up on the hypothetical of a president who uses SEAL Team 6 to kill a rival and then escapes criminal liability by simply resigning before he could be impeached or by avoiding a conviction in the Senate, James I. Pearce, a lawyer for the special counsel Jack Smith, denounced Mr. Sauer’s argument. Such a rationale, he added, put forth an understanding of presidential immunity that was not just wrong but also a vision for “an extraordinarily frightening future.”He also rejected the idea that allowing the case to go forward would be a “sea change” that opened the door to “vindictive tit-for-tat prosecutions in the future.” Instead, he said, the fact that Mr. Trump is the first former president ever to be charged with crimes underlined the “fundamentally unprecedented nature” of the criminal charges. He continued: “Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system.”Mr. Pearce added, “Frankly if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”U.S. District Court via Associated PressTrump tried to engage in political theater.In an unusual move, Mr. Trump showed up in person at the appeals court hearing, even though he was not obliged to be there. But if he was hoping to turn the appearance to his political advantage, the effort fell a little flat.He was ushered into the federal courthouse through a heavily guarded back entrance and did not address the dozens of reporters covering the proceedings. And during the hearing itself, he was silent, doing little more than exchanging notes with his lawyers and staring at the judges who will decide his fate.Afterward, Mr. Trump was driven a few blocks away to the Waldorf Astoria Hotel, which once operated under his name, and denounced his prosecution on the election interference charges. He also repeated his false claims that there had been widespread fraud in the 2020 election.“We had a very momentous day in terms of what was learned,” he told reporters. “I think it’s very unfair when a political opponent is prosecuted.”What’s next: The judges will rule, but the timing is not clear.It is not clear when the appellate panel will hand down its ruling. Depending on its outcome, either Mr. Trump or prosecutors could appeal it. The case could be appealed to the full court of appeals — all 11 active judges — or directly to the Supreme Court.Either one of those courts could decide whether to take up the matter or decline to get involved and leave the ruling by the panel in place.How quickly all of this plays out could be nearly as important as the ultimate result. After all, the trial judge, Tanya S. Chutkan, has frozen the underlying case until the immunity issue is resolved. For now, the case is set to go in front of a jury in early March, but protracted litigation could push it back — perhaps even beyond the November election.If that were to happen and Mr. Trump were to win the election, he could try to pardon himself or otherwise use his control of the Justice Department to end the case against him.Christina Kelso More

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      Three Years After Jan. 6, Trump’s Immunity Claims to Take Center Stage

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      An appeals court will hear arguments on Tuesday over the former president’s attempt to shut down the federal election case. Much is riding on how — and how quickly — the issue is decided.Three years after a mob of his supporters stormed the Capitol, former President Donald J. Trump will make his latest and potentially most consequential argument in the coming week for why he should not be held responsible for seeking to overturn the 2020 election.Impeachment proceedings, the House Jan. 6 committee’s inquiry and two separate criminal investigations have established a comprehensive set of facts about Mr. Trump’s deep involvement in overlapping efforts to remain in office despite having been defeated at the polls.But when — or even whether — he will ultimately face a trial on charges related to those efforts remains unclear. One of the most decisive factors in getting an answer to those questions will be the success or failure of the arguments his legal team plans to make on Tuesday in a federal appeals court in Washington.Mr. Trump’s lawyers are banking on a long shot, hoping to convince a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit that the Constitution affords him complete immunity from actions he undertook as president. The assertion, while untested in the courts, has the advantage to the former president of chewing up time in the service of his strategy of trying to delay any trial until after Election Day.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      Trump Wants Jack Smith Held in Contempt of Court in Federal Election Case

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      The former president’s lawyers sought to have Jack Smith and two deputies explain why they should not be held in contempt of court for taking new steps in the case after it was put on hold.Lawyers for former President Donald J. Trump said on Thursday that they want the special counsel, Jack Smith, and two of his top deputies to be held in contempt of court and sanctioned for violating a judge’s order that effectively froze the criminal case accusing Mr. Trump of plotting to overturn the 2020 election.The lawyers in their request seek to force Mr. Smith and his team to explain why they should not be held in contempt and possibly pay a portion of Mr. Trump’s legal fees. The request was the latest aggressive move in what has quickly turned into a legal slugfest between the defense and prosecution, underscoring how critical the issue of timing has become in the election subversion case.The spat began last month when Judge Tanya S. Chutkan, who is overseeing the case in Federal District Court in Washington, put all of its proceedings on hold until Mr. Trump resolved his attempts to have the underlying charges dismissed with claims that he has immunity from prosecution in the case.Those arguments will be heard on Tuesday by a federal appeals court in Washington and are likely to make their way to the Supreme Court for another level of review.The trial in the election case is set to begin in early March. Hoping to keep it on schedule, prosecutors working for Mr. Smith have, on occasion, sought to nudge the matter forward despite Judge Chutkan’s order.A few days after the order was imposed, for instance, they told the judge that they had sent Mr. Trump’s legal team a draft list of exhibits that they intended to use at the trial and thousands of pages of additional discovery materials. They noted that the list and the documents had been turned over “to help ensure that trial proceeds promptly if and when” the case was back in action.Then, two days after Christmas, the prosecutors filed a memo to Judge Chutkan, asking her to stop Mr. Trump from making “baseless political claims” or introducing “irrelevant disinformation” at the trial.After Mr. Smith sent the draft list of exhibits, lawyers for Mr. Trump fired off an angry letter to Judge Chutkan, complaining about how prosecutors had “improperly and unlawfully attempted to advance this case” in violation of her order pausing it.But the lawyers were silent about Mr. Smith’s second such move until Thursday.In a 15-page motion, John F. Lauro, writing for Mr. Trump’s legal team, accused the prosecution of “partisan-driven misconduct” and said they had treated Judge Chutkan’s decision to pause the case as “merely a suggestion meaning less than the paper it is written on.”Mr. Lauro also asked for a series of potentially severe consequences, starting with an order that would force Mr. Smith and two of his deputies — Thomas P. Windom and Molly Gaston — to come up with answers for why they should not be held in contempt and be made to pay whatever legal fees Mr. Trump may have incurred by dealing with their recent filings and productions.Moreover, Mr. Lauro asked the judge to make the prosecutors tell her why they should not be forced to “immediately withdraw” the last motion they filed and be “forbidden from submitting any further filing” without express permission.“These were no accidents,” Mr. Lauro wrote about Mr. Smith’s attempts to keep pushing the case forward. “The submissions were fully planned, intentional violations of the stay order, which the prosecutors freely admit they perpetrated in hopes of unlawfully advancing this case.”The skirmish over the stay order reflects how central the question of timing is to the election interference case. In addition to the back and forth about legal issues large and small, the defense and prosecution have been waging a second war over when the case will go to trial — specifically, if it will be held before or after the 2024 election.For weeks, Mr. Smith and his team have been trying to keep the trial on schedule, arguing that the public has an enormous interest in a speedy prosecution of Mr. Trump, who is the Republican Party’s leading candidate for the presidency. In doing so, they have gone to unusual lengths, at one point making a failed request to the Supreme Court to leap ahead of the appeals court that is now hearing Mr. Trump’s immunity claims and to render a quick decision.Mr. Trump’s lawyers have used every means at their disposal to slow the case down, hoping to delay a trial until after the election is decided. If that happened and Mr. Trump won, he would have the power to order the federal charges against him dropped. More

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      Trump da un paso más en su solicitud de ‘inmunidad absoluta’

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      Exfuncionarios del gobierno destacan que la postura de Trump tiene “consecuencias absurdas y de gran alcance”.Casi no hay nada en el texto de la Constitución de Estados Unidos que siquiera respalde de manera remota el más osado argumento de la defensa del expresidente estadounidense Donald Trump contra el cargo de conspiración para anular las elecciones de 2020: que tiene inmunidad absoluta contra cualquier acusación por las acciones realizadas mientras ocupaba el cargo.La próxima semana, un tribunal federal de apelaciones evaluará los fundamentos expuestos en los alegatos, y el panel considerará factores como la historia, los precedentes y la división de poderes. Sin embargo, como ha reconocido la Corte Suprema, la Constitución en sí misma no aborda de manera explícita el tema de la existencia o el alcance de la inmunidad presidencial.En su recurso de apelación, Trump señala que el análisis incluyó una disposición constitucional, aunque su argumento no tiene muchos fundamentos legales. Tal disposición, la cláusula relativa al caso de una sentencia por juicio político, estipula que los funcionarios sometidos a juicio político por la Cámara de Representantes y declarados culpables por el Senado todavía pueden quedar sujetos a un procedimiento penal.We are having trouble retrieving the article content.Please enable JavaScript in your browser settings.Thank you for your patience while we verify access. If you are in Reader mode please exit and log into your Times account, or subscribe for all of The Times.Thank you for your patience while we verify access.Already a subscriber?  More

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      Trump Makes Another Pitch to Appeals Court on Immunity in Election Case

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      The filing was the last step before an appeals court in Washington will hold a hearing on the crucial issue next week.Lawyers for former President Donald J. Trump on Tuesday made their final written request to a federal appeals court to grant Mr. Trump immunity to charges of plotting to overturn the 2020 election, arguing the indictment should be tossed out because it arose from actions he took while in the White House.The 41-page filing to the U.S. Court of Appeals for the District of Columbia Circuit was the final step before the defense and prosecution debate the issue in front of a three-judge panel next Tuesday.The dispute over immunity is the single most important aspect of the election interference case, touching not only on new questions of law but also on consequential issues of timing. The case is scheduled to go to trial in Federal District Court in Washington in early March, but has been put on hold until Mr. Trump’s efforts to have the charges tossed on immunity grounds are resolved.In their filing to the appeals court, Mr. Trump’s lawyers repeated some of the arguments they had made in earlier submissions. They claimed, for instance, that a long history of presidents not being charged with crimes suggested that they all enjoyed immunity. They also said that prosecuting Mr. Trump now could unleash a chain reaction of other presidents being indicted.“The 234-year unbroken tradition of not prosecuting presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence of it,” D. John Sauer, a lawyer who has handled Mr. Trump’s appeals, wrote of the idea of executive immunity.Mr. Sauer added: “The likelihood of mushrooming politically motivated prosecutions, and future cycles of recrimination, are far more menacing and crippling to the presidency than the threat of civil liability.”Mr. Trump’s lawyers raised another, even more audacious argument: that because he had been acquitted by the Senate during his second impeachment of inciting insurrection at the Capitol on Jan. 6, 2021, he could not be tried in a criminal court in the election interference case.But both legal experts and some of the senators who acquitted Mr. Trump have disagreed with that position — not least because the federal charges he is facing are not analogous to those he faced during his impeachment.The issue of Mr. Trump’s immunity claims is legally significant because the question of whether former presidents can be criminally liable for things they did in office has not been tested in court. Mr. Trump is the first former president to have been charged with crimes.But the appeal of the immunity issue has revolved around more than the question of whether Mr. Trump should eventually stand trial on the election charges. It has also touched on the separate, but equally critical, question of when the trial should occur.Prosecutors in the office of the special counsel, Jack Smith, have been trying for weeks to keep the trial on schedule, arguing that the public has an enormous interest in a speedy prosecution of Mr. Trump, the Republican Party’s leading candidate for the presidency.Mr. Trump’s lawyers, pulling in the opposite direction, have used every lever at their disposal to slow the case down, hoping to delay a trial until after the 2024 election is decided. If that happened and Mr. Trump won, he would have the power to simply order the charges against him dropped.The immunity challenge is being considered by Judge Karen L. Henderson, who was appointed by President George H.W. Bush, and by Judges Florence Y. Pan and J. Michelle Childs, who were put on the bench by President Biden.On Tuesday, before Mr. Trump’s court papers were filed, the judges informed both sides in the case that they should be prepared at the hearing next week to discuss issues raised in several friend-of-the-court briefs that have been submitted.One of the briefs argued that the issue of immunity should never have been subject to an immediate appeal, but rather should have been raised only if Mr. Trump were convicted. Another maintained that Mr. Smith had been improperly appointed to the role of special counsel and lacked the “authority to conduct the underlying prosecution.”Last month, fearing that a prolonged appeal could delay the case from going in front of a jury, Mr. Smith made an unusual request to the Supreme Court: He asked the justices to step in front of the appeals court and consider the case first.Although the justices rejected his petition, they are likely to get the case again after the appeals court makes its decision. More

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      Trump’s Most Ambitious Argument in His Bid for ‘Absolute Immunity’

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      The former president says his acquittal by the Senate in his second impeachment trial, for inciting insurrection, bars any prosecution on similar grounds.There is almost nothing in the words of the Constitution that even begins to support former President Donald J. Trump’s boldest defense against charges that he plotted to overturn the 2020 election: that he is absolutely immune from prosecution for actions he took while in office.A federal appeals court will hear arguments on the question next week, and the panel will consider factors including history, precedent and the separation of powers. But, as the Supreme Court has acknowledged, the Constitution itself does not explicitly address the existence or scope of presidential immunity.In his appellate brief, Mr. Trump said there was one constitutional provision that figured in the analysis, though his argument is a legal long shot. The provision, the impeachment judgment clause, says that officials impeached by the House and convicted by the Senate are still subject to criminal prosecution.The provision says: “Judgment in cases of impeachment shall not extend further than to removal from office, and disqualification to hold and enjoy any office of honor, trust or profit under the United States: But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law.”All the clause says in so many words, then, is that “the party convicted” in the Senate can still face criminal prosecution. But Mr. Trump said the clause implied something more.The clause “presupposes that a president who is not convicted may not be subject to criminal prosecution,” Mr. Trump’s brief said.A friend-of the-court brief from former government officials said Mr. Trump’s position had “sweeping and absurd consequences,” noting that a great many officials are subject to impeachment.“Under defendant’s interpretation,” the brief said, “the executive would lack power to prosecute all current and former civil officers for acts taken in office unless Congress first impeached and convicted them. That would permit countless officials to evade criminal liability.”Mr. Trump also made a slightly narrower but still audacious argument: “A president who is acquitted by the Senate cannot be prosecuted for the acquitted conduct.”Mr. Trump was, of course, acquitted at his second impeachment trial, on charges that he incited insurrection, when 57 senators voted against him, 10 shy of the two-thirds majority needed to convict.The idea that the impeachment acquittal conferred immunity from prosecution may come as a surprise to some of those who did the acquitting.Take Senator Mitch McConnell, the Republican leader, who voted for acquittal. Shortly afterward, in a fiery speech on the Senate floor, he said the legal system could still hold Mr. Trump to account.“We have a criminal justice system in this country,” Mr. McConnell said. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”That suggests that Mr. Trump’s reading of the clause is far from obvious, but the Justice Department has said that it is not wholly implausible. In 2000, its Office of Legal Counsel issued a 46-page memorandum devoted to just this question. It was called “Whether a Former President May Be Indicted and Tried for the Same Offenses for Which He was Impeached by the House and Acquitted by the Senate.”The argument that such prosecutions run afoul of the Constitution “has some force,” according to the memo, which was prepared by Randolph D. Moss, now a federal judge. But, it went on, “despite its initial plausibility, we find this interpretation of the impeachment judgment clause ultimately unconvincing.”It added: “We are unaware of any evidence suggesting that the framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative implication in mind.”More fundamentally, the memo said, “impeachment and criminal prosecution serve entirely distinct goals.” Impeachment trials involve political judgments. Criminal trials involve legal ones.In a brief filed on Saturday, Jack Smith, the special counsel, wrote that “acquittal in a Senate impeachment trial may reflect a technical or procedural determination rather than a factual conclusion.” The brief noted that at least 31 of the 43 senators who voted to acquit Mr. Trump at the impeachment trial said they did so at least in part because he was no longer in office and thus not subject to the Senate’s jurisdiction.Mr. Trump’s reading of the provision “would produce implausibly perverse results,” Judge Tanya S. Chutkan, who is overseeing his trial in Federal District Court in Washington, wrote in a decision last month rejecting Mr. Trump’s claim of absolute immunity.She noted that the Constitution permits impeachment for a narrow array of offenses — “treason, bribery or other high crimes or misdemeanors.”Under Mr. Trump’s reading, Judge Chutkan wrote, “if a president commits a crime that does not fall within that limited category, and so could not be impeached and convicted, the president could never be prosecuted for that crime.”“Alternatively,” she went on, “if Congress does not have the opportunity to impeach or convict a sitting president — perhaps because the crime occurred near the end of their term, or is covered up until after the president has left office — the former president similarly could not be prosecuted.”She added that President Gerald R. Ford’s pardon of former President Richard M. Nixon, who resigned as calls to impeach him for his role in the Watergate scandal grew, would have been unnecessary under Mr. Trump’s reading. More

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      When Will Trump Stand Trial? Supreme Court Order May Help Him Delay.

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      The former president’s claim that he is immune from prosecution will now be taken up by a federal appeals court — and could end up back in front of the justices within weeks.The Supreme Court’s decision on Friday not to fast-track consideration of former President Donald J. Trump’s claim that he is immune to prosecution on charges of plotting to overturn the 2020 election was unquestionably a victory for Mr. Trump and his lawyers.The choice by the justices not to take up the issue now — rendered without explanation — gave a boost to the former president’s legal strategy of delaying the proceedings as much as possible in the hopes of running out the clock before Election Day.It is not clear, however, that the decision holds any clues to what the Supreme Court might think of the substance of his immunity claim. And the degree to which it pushes off Mr. Trump’s trial will only be determined in coming weeks as the clash over whether he can be prosecuted plays out in the federal appeals court in Washington — and then perhaps makes its way right back to the justices.How the Supreme Court handles the case at that point could still have profound implications, both for whether the federal election interference indictment will stand and for whether Mr. Trump might succeed in pushing a trial past the election. At that point, if he wins the presidency, he could order the charges to be dropped.Here is a look at what’s ahead.What issue is Mr. Trump appealing?Mr. Trump is attempting to get the entire indictment against him tossed out with an argument that has never before been tested by the courts — largely because no one else has ever made it this way. He is claiming that he is absolutely immune to criminal prosecution on the charges of election interference because they stem from acts he took while he was in the White House.Judge Tanya S. Chutkan, who is handling the underlying case in Federal District Court in Washington, rejected that claim earlier this month in a decision that found there was nothing in the Constitution or American history supporting the idea that the holder of the nation’s highest position, once out of office, should not be subject to the federal criminal law like everybody else.Mr. Trump appealed the decision to the first court above Judge Chutkan’s: the U.S. Court of Appeals for the District of Columbia Circuit.But fearing that a protracted appeal could delay the case from going to trial as scheduled in March, Jack Smith, the special counsel who filed the indictment, made an unusual request to the Supreme Court: He asked the justices to step in front of the appeals court and consider the case first to speed up the process and preserve the current trial date.On Friday, in a one-sentence order, the Supreme Court turned down Mr. Smith’s request.Where will the case be heard now?The appeals court in Washington will hear the immunity matter. In fact, the court will do so on a schedule that is extremely accelerated by judicial standards.A three-judge panel of the court — made up of one judge named by President George H.W. Bush and two appointed by President Biden — has ordered all of the briefs in the case to be turned in by Jan. 2. It has set a hearing for oral arguments on Jan. 9.In a sign of how quickly the panel is moving, the judges told Mr. Trump’s lawyers to turn in their first round of court papers on Saturday, two days before Christmas. Mr. Smith’s team has been ordered to submit its own papers on the following Saturday, the day before New Year’s Eve.What happens after the appeals court rules?If the appeals court decides in Mr. Trump’s favor, Mr. Smith’s office would almost certainly challenge the loss in front of the Supreme Court, assuming the justices agreed to hear it.But the more likely scenario is that the three appellate judges rule against Mr. Trump, rejecting his claims of immunity.At that point, he could seek to have the entire circuit court hear the appeal — a move that, if nothing else, would eat up more time. If the full court declined to take the case or ruled against him, he would likely ask the Supreme Court to step in for the second time.What happens if it goes back to the Supreme Court?In theory, the Supreme Court could decline to take up the immunity matter if Mr. Trump loses and simply let the appeals court ruling stand. That option could be appealing to the justices if they want to avoid stepping directly into a highly charged political issue — just one of several they are likely to confront in coming months that could have a bearing on Mr. Trump’s chances of reclaiming the White House.Were that to happen, the case would go back to Judge Chutkan and she would set a new date for trial. Her handling of the case so far suggests that she would move the proceedings along at a rapid clip.If, however, the Supreme Court were to take the case, the justices would have to make another critical decision: how fast to hear it. It is possible they could consider the case quickly and return a ruling on the immunity issue by — or even well before — the end of their current term in June.But Mr. Smith has expressed concern in filings to the court that the justices might not be able to complete their work before the end of this term. If they do not, the case would drag into the next term, which does not get underway until October, too late to resolve before Election Day.What does all of this mean for the start of the trial?If the appeals court returns a quick decision against Mr. Trump and the Supreme Court lets that decision stand, the trial might be delayed, but perhaps only by a matter of weeks. Under this scenario, it is conceivable that the case could go in front of a jury by April or May, well before the heart of the campaign season.If the Supreme Court takes the case and hears it on a fast-tracked schedule, the trial could be delayed for somewhat longer — perhaps by a matter of months. That would mean a trial could be held over the summer, a fraught possibility given that the Republican nominating convention is in July and that Mr. Trump, assuming he is the party’s nominee, could be kept from doing much traditional campaigning for the duration of the trial.But if the Supreme Court takes the case and follows a leisurely pace in considering it, there might not be a trial at all before the general election in November. In that case, voters would not have the chance to hear the evidence in the case against Mr. Trump before making their choice — and a President Trump could choose to make sure they do not get the chance after the election either. More