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Lawyers for Trump to make a sweeping argument that he enjoys blanket immunity

STEVE INSKEEP, HOST:

Today, a federal appeals court hears arguments over one of the indictments of former President Trump.

MICHEL MARTIN, HOST:

The court considers whether the United States can prosecute an ex-president for acts committed in office. Lawyers for Trump claim he has immunity. If the court agreed, that would prevent a trial he is facing for his efforts to overturn his election defeat.

INSKEEP: NPR justice correspondent Carrie Johnson has been following the case. Carrie, good morning.

CARRIE JOHNSON, BYLINE: Good morning, Steve.

INSKEEP: I'm just trying to remember - former President Trump was impeached for his efforts to overturn the election and for the January 6 attack on the Capitol. And at the time, some of his defenders in the U.S. Senate said, this is not a matter for impeachment; if he violated the law, you can prosecute him afterward. How did we get to the point now where his lawyers are saying you can't prosecute him afterward?

JOHNSON: Yeah. Trump's attorneys are making the argument that to prosecute him now for virtually the same conduct after January 6 would amount to a violation of the principle of double jeopardy. Of course, prosecutors say that's simply wrong. They point to statements from Senator Mitch McConnell, a Republican from Kentucky, and others who said at the time of the impeachment that it was up to the justice system to decide what to do with Donald Trump.

And another key argument Trump is going to be making is that he's immune from prosecution. He enjoys blanket immunity because what he did before and after January 6, 2021, were official actions while he was president in the White House.

INSKEEP: Oh, interesting. I guess that raises the question, first, of whether it's an official action and, second, whether you can prosecute for an official action. What do prosecutors say?

JOHNSON: Prosecutors say these arguments by Trump and/or the appeals court to buy them would be really sweeping and would even undermine the democracy, give presidents a license to commit crimes while in the White House. Special counsel Jack Smith mentioned crimes like accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary. Of course, no former president has ever been charged with a federal crime. Donald Trump is the first. So this is going to be a landmark case whichever way the appeals court rules.

INSKEEP: Granting that, is there any history that gives us any guide here?

JOHNSON: Yeah. The special counsel points out that Richard Nixon got a pardon from President Ford and that pardons involve some acceptance or acknowledgement of criminal wrongdoing. The Supreme Court has ruled in the past that presidents have some shield from civil liability, like money damages, but that must relate to something in their work as the president. And the Justice Department says Trump was acting like a political candidate when he tried to cling to power in 2020 and 2021 - not like a president.

INSKEEP: OK. So we don't really know if there's going to be a trial until we know how the courts rule on this question, and yet there is a trial scheduled. So how do things stand?

JOHNSON: Yeah, the trial was supposed to start on March 4, the day before Super Tuesday, but it's on hold for now while we wait for a ruling from the appeals court. If this three-judge panel acts quickly and agrees with prosecutors, it's possible the trial could still happen with some short delays. But if Donald Trump asks the full appeals court to hear the case or takes it to the Supreme Court, the trial could really stall this year. That's important because of so many key political dates on the calendar, like the Republican convention in July. Prosecutors have been trying to work ahead, and they've been filing lots of motions, but Trump hasn't wanted to accept them. Last week, he even tried to get a judge to punish prosecutors for doing that kind of work while the case is on pause.

INSKEEP: NPR's Carrie Johnson, thanks so much.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Steve Inskeep is a host of NPR's Morning Edition, as well as NPR's morning news podcast Up First.
Carrie Johnson is a justice correspondent for the Washington Desk.