Former US President Donald Trump warned he could prosecute his successor Joe Biden if he returns to the White House. "If I don't get immunity then crooked Joe Biden doesn't get immunity," Trump said in a video posted on social media. "Joe would be ripe for indictment."
The statement came as Trump returned for the first time in months to the federal courthouse in Washington on Tuesday as his lawyers argued to appeals judges that he was immune from prosecution on charges that he plotted to overturn the results of the 2020 election.
The panel of three judges also questioned whether they had jurisdiction to consider the appeal at this point in the case, raising the prospect that Trump’s effort could be dismissed.
During lengthy arguments, the judges repeatedly pressed Trump’s lawyer to defend claims that Trump was shielded from criminal charges for acts that he says fell within his official duties as president. That argument was rejected last month by a lower-court judge overseeing the case against Trump, and the appeals judges suggested through their questions that they, too, were dubious that the Founding Fathers envisioned absolute immunity for presidents after they leave office.
“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 law,” said Judge Karen LeCraft Henderson, an appointee of former President George HW Bush.
The outcome carries enormous ramifications both for the landmark criminal case against Trump and for the broader, and legally untested, question of whether an ex-president can be prosecuted for acts committed in the White House. It will also likely set the stage for further appeals before the U.S. Supreme Court, which last month declined a request to weigh but could still get involved later.
A swift decision is crucial for special counsel Jack Smith and his team, who are eager to get the case — now paused pending the appeal — to trial before the November election. But Trump’s lawyers, in addition to seeking to get the case dismissed, are hoping to benefit from a protracted appeals process that could delay the trial well past its scheduled March 4 start date, including until potentially after the election.
Underscoring the importance to both sides, Trump, the 2024 Republican presidential primary front-runner, attended Tuesday’s arguments even though the Iowa caucuses are just one week away and despite the fact that there’s no requirement that defendants appear in person for such proceedings. It was his first court appearance in Washington, one of four cities where he faces criminal prosecutions and potential trials, since his arraignment in August.
He’s already signalling that he could use the appearance to portray himself as the victim of a politicized justice system. Though there’s no evidence that President Joe Biden has had any influence on the case, Trump’s argument could resonate with Republican voters in Iowa as they prepare to launch the presidential nomination process.
On his way to court on Tuesday, he said in a fundraising email that he was going “to fight for my rights as Crooked Joe and his Special Counsel of “war crimes prosecutors” are attempting to strip them from me,.”
Former presidents enjoy broad immunity from lawsuits for actions taken as part of their official White House duties. But because no former president before Trump has ever been indicted, courts have never before addressed whether that protection extends to criminal prosecution.
