WASHINGTON — Donald Trump’s latest legal battle will take place in a Washington courtroom on Tuesday as the former president attempts to quash his prosecution over efforts to overturn the 2020 presidential election that culminated in the Jan. 6, 2021, attack on the U.S. Capitol.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments on Trump’s claim that he has absolute immunity from prosecution because of his status as president at the time.
Trump himself plans to be in attendance at the federal courthouse just a few blocks from the Capitol complex.
Here’s what to know ahead of the arguments:
Trump’s criminal charges
In August, a federal grand jury in Washington indicted Trump on four charges: conspiracy to defraud the U.S.; conspiracy to obstruct an official proceeding; obstruction; and conspiracy against the right to vote and to have one’s vote counted. Trump pleaded not guilty.
Washington-based U.S. District Judge Tanya Chutkan, who is presiding over the case, wants the trial to go ahead in March, which would allow it to be concluded well before the election, but Trump’s appeal threatens that timeline unless courts act quickly.
What has happened so far?
On Dec. 1, Chutkan denied Trump’s motion to dismiss his indictment on presidential immunity and constitutional grounds.
The case is on hold while Trump appeals the decision.
Special counsel Jack Smith last month asked the Supreme Court to immediately step in before the appeals court could consider the issue, but the justices turned down that request, meaning the appeals court oral argument could go ahead as planned.
The legal arguments
Trump is making the sweeping argument that former presidents enjoy absolute immunity from criminal prosecution for any “official acts” taken while in office. Furthermore, his lawyers argue in their briefs that prosecuting Trump over actions for which he was already impeached and acquitted in the Senate following an impeachment proceeding would be a form of double jeopardy.
“The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our nation for many decades to come and stands likely to shatter the very bedrock of our Republic,” Trump’s lawyers wrote in court papers.
They argue that Trump’s role in questioning the result of the election was within the “outer perimeter” of his official responsibilities as president, citing a 1982 Supreme Court ruling about presidential immunity in a civil case.
The special counsel’s office argues that the well-established concept of presidential immunity from civil liability for official acts does not extend to immunity from criminal liability.
“No historical materials support the defendant’s broad immunity claim,” Smith wrote in court papers. The fact that President Richard Nixon sought and received a pardon after resigning from office as a result of the Watergate scandal “reflects the consensus view that a former president is subject to prosecution after leaving office,” he added.
Could the court sidestep the immunity question?
In addition to the arguments made by both sides, judges are expected to ask lawyers to address a point raised by third parties who have filed friend-of-the-court briefs. One of those briefs, filed by the liberal group American Oversight, argues that the appeals court actually has no jurisdiction to hear the appeal, meaning the case should be returned to Chutkan so the trial can move forward. The special counsel’s office has not endorsed this argument and conceded in its briefs that Trump could bring the appeal.
Another brief from former Attorney General Edwin Meese III argues that all proceedings against Trump should be thrown out because Jack Smith’s appointment as special counsel is unlawful.
The judges
The all-woman panel includes two Democratic appointees and one Republican appointee. The senior member is Judge Karen Henderson, a long-serving appeals court judge appointed by Republican President George H.W. Bush in 1990.
The two Democratic appointees are both recent additions to the court nominated by President Joe Biden. They are Judge Michelle Childs, who was considered for the Supreme Court opening that ultimately went to Justice Ketanji Brown Jackson, and Judge Florence Pan, who previously served as a federal district court judge and as a local judge in Washington.
The lawyers
Dean John Sauer, a former Missouri solicitor general and clerk for conservative Supreme Court Justice Antonin Scalia, will argue on behalf of Trump. He previously argued before the same court when Trump appealed a gag order imposed on him by Chutkan.
Smith’s team will be represented by James Pearce, a career lawyer in the Justice Department.
The arguments
The appeals court has scheduled a 45-minute oral argument, but the session is likely to go on much longer, with judges peppering the lawyers with questions. Live audio of the arguments will be streamed on YouTube.
What happens next?
The court is hearing the case on an expedited schedule, so a ruling could come quickly. Whatever happens, the losing party is likely to immediately appeal to the Supreme Court. The justices would then face a decision on whether to take up the case and issue their own ruling, potentially also on a fast-tracked basis.
But the Supreme Court is not required to take up the case and could simply leave the appeals court ruling in place. If Trump loses the appeal and the Supreme Court declines to hear his case, then the trial could still move forward quickly.
Lawrence Hurley
Lawrence Hurley covers the Supreme Court for NBC News.
Daniel Barnes
Daniel Barnes reports for NBC News, based in Washington.
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