WASHINGTON ― Donald Trump brought his “Big Lie” ― that the 2020 election was stolen from him ― into a federal appeals courtroom Tuesday, with the argument that his attempts to overturn the election leading up to and on Jan. 6, 2021, were official acts, and that he is therefore immune from prosecution.
Trump was “responding to widespread allegations of fraud, abuse and misfeasance in a presidential election, trying to find how to respond to that in a manner that’s in the national interest,” attorney John Sauer told three judges on the Circuit Court of Appeals for the District of Columbia, with the former president sitting just behind him.
The claim appears to run afoul of legal ethics rules that prohibit lawyers from making false statements in court.
“Lawyers have broad leeway to argue propositions of law that may be tendentious. But they commit ethical breaches when they intentionally make false factual statements to a court,” said George Conway, a lawyer who worked on the case that ultimately got former President Bill Clinton impeached for perjury and who is now a vocal Trump critic. “And this legal position, that Trump was seeking to investigate ‘fraud,’ is a brazen lie. A lie that should be sanctionable.”
Ty Cobb, a former Trump White House lawyer, said previous statements that Trump’s lawyers have made in briefs may also cause them problems.
“This and the many other citations, for which the alleged source cannot be found, raise those ‘candor before the court’ issues,” Cobb said.
Sauer was the only one on Trump’s legal team to present during oral arguments Tuesday, but two of his colleagues, John Lauro and Todd Blanche, also signed on to a brief they filed last week that makes the same claim.
None responded to HuffPost’s queries.
In the filing, they cite as their evidence a social media post by Trump himself of a comprehensive list created by his campaign of long-debunked falsehoods about the election.
Sauer also repeated Trump’s false claims that he is being prosecuted because he is likely to win the 2024 Republican presidential nomination. “The current incumbent of the presidency is prosecuting his greatest political rival,” he said.
In fact, the Department of Justice began investigating Trump’s coup attempt almost immediately after a mob of his followers attacked the Capitol in hopes of intimidating Congress into handing Trump a second term at its election certification ceremony.
The assault injured 140 police officers, one of whom died hours later. Another four officers died by suicide in the following weeks.
Trump and his lawyers are asking the appellate court to overturn trial Judge Tanya Chutkan’s rejection of his claim that presidents are immune from any criminal prosecution unless they are first impeached by Congress and removed from office.
That argument was met with skepticism Tuesday, with Sauer getting 48 minutes of intense grilling while DOJ lawyer James Pearce fielded questions for only 25.
Judge Florence Pan asked Sauer if a president who abused his authority over the military could avoid prosecution: “Could a president order SEAL Team Six to assassinate a political rival?”
Sauer answered yes ― that unless a president is first removed from office by Congress, even that act would not be prosecutable.
He also argued that even Trump’s 2:24 p.m. tweet on Jan. 6, in which he inflamed the already angry crowd by accusing then-Vice President Mike Pence of lacking the “courage” to overturn the election for him, was immune from criminal prosecution. The mob surged into the Capitol within minutes of that posting, with many chanting “Hang Mike Pence” as they roamed the halls.
“His Twitter account during his presidency was an official channel of government communications,” Sauer said. “All those tweets are obviously immune.”
The judge on the panel seen as potentially most sympathetic to Trump, Karen Henderson, who was appointed by Republican President George H.W. Bush, sounded unpersuaded by his arguments.
“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,” she said.
It is unclear when the appellate court will rule, although it has thus far fast-tracked the process. Late last month, the U.S. Supreme Court declined special counsel Jack Smith’s request that it step in and rule on the immunity question immediately.
Trump is also under indictment in Georgia for his attempt to overturn his election loss in that state, while a South Florida federal grand jury indicted him for refusing to turn over secret documents he took with him to his Palm Beach country club upon leaving office. A New York state grand jury has also indicted him, accusing him of falsifying business records to hide a $130,000 hush money payment to a porn star in the days ahead of the 2016 election.
Trump nevertheless remains the polling leader for the 2024 GOP nomination, with some Republicans ― including Florida Gov. Ron DeSantis, another presidential hopeful ― crediting the indictments themselves for his high standing among primary voters.