Trump presses immunity claim, says he could prosecute Biden if re-elected

Donald Trump warned on Tuesday he could prosecute Joe Biden if he returns to the White House, as Washington appeals court judges expressed skepticism at the former US president's claims that he is immune from criminal charges for trying to overturn the 2020 election.

The Republican's lawyers on Tuesday were trying to convince the three judges that a federal criminal case charging Trump with election subversion should be dismissed before it goes to trial in March.

With the Republican state-by-state presidential nominating contest due to kick off next week, Trump is using the hearing as an opportunity to claim he is the victim of political persecution.

The US Justice Department has long held that sitting presidents cannot be prosecuted for actions they take in office, and Trump says that should apply to former presidents as well.

If the case is allowed to go forward, Trump said, he could prosecute Democrat Biden if he wins the November presidential election.

"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."

Trump, who lost to Biden in the 2020 election, has opened up a commanding lead over his rivals for the Republican presidential nomination since the first criminal charge against him was announced last March. He is expected to easily win Monday's contest in Iowa.

Skeptical response

Trump's lawyer D. John Sauer told a three-judge panel of the US Court of Appeals for the District of Columbia Circuit that prosecuting former presidents "would open a Pandora's Box from which that nation may never recover.

He faced a skeptical reception.

"You're saying a president could sell pardons, could sell military secrets, could tell SEAL Team Six to assassinate a political rival?" Judge Florence Pan asked him.

Sauer responded that if that was part of a president's official duties, he would have to first be impeached and removed from office by Congress before he could be prosecuted. Trump was impeached twice but the Senate failed to convict him.

Trump had announced plans to attend the hearing, where he would not be given a chance to speak, and his motorcade was spotted entering the building through an underground garage on Tuesday morning.

Special Counsel Jack Smith, who is overseeing the prosecution, has argued that granting such a sweeping legal shield would give future presidents license to commit crimes such as accepting bribes or directing the FBI to plant evidence on political opponents.

Smith has argued Trump was acting as a candidate, not a president, when he pressured officials to overturn the election results and encouraged his supporters to march to the Capitol on Jan. 6, 2021.

Both the legal outcome and timing of the appeals court’s ruling will play a pivotal role in determining whether Trump faces trial ahead of the Nov. 5, 2024, election.

Smith has accused Trump of a multi-pronged conspiracy to hinder the counting and certification of his 2020 defeat, culminating in the Jan. 6 attack. Trump has pleaded not guilty to charges including defrauding the government and obstructing Congress.

The case is one of four criminal prosecutions Trump faces this year as he campaigns to win back the White House.

Trump's immunity claim has already been rejected by US District Judge Tanya Chutkan, who is overseeing the case. But it could take several weeks or months to be resolved on appeal.

Any ruling from the appeals court is almost certain to be appealed to the US Supreme Court, which last month denied a request from Smith to immediately decide the issue.

Activity in the case has been halted in the meantime, which could delay the trial's scheduled March 4 start.