WASHINGTON—The legal reckoning for Donald Trump enters a critical stretch Tuesday as a Washington federal appeals court considers the former president’s claim that he is immune from prosecution on charges he plotted to overturn the 2020 election.
Trump is planning to attend the arguments at a courthouse mere blocks from the Capitol and is expected to sit in on a hearing Thursday in his civil-fraud case in New York, with the Iowa caucuses less than a week away. Though Trump isn’t required to be there, his presence in court reflects how his legal defense has merged with his presidential ambitions as he seeks to capitalize on a torrent of criminal jeopardy and cast himself as the target of politicized prosecutions.
His approach appears to be resonating, at least among Republican stalwarts. He enters the GOP primary season with a prohibitive lead in the polls and a 2024 calendar filled with opportunities for more legal sparring, including at the Supreme Court.
“What you’re about to see in a whole variety of different cases are some very direct challenges to some basic ideas we have about the rule of law and whether or not people who assume high office retain personal responsibility and accountability for wrongdoing,” said Frank Bowman, a professor emeritus at the University of Missouri. “This is foundational stuff.”
For Trump and his legal team, the arguments before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit come with high stakes. His success or failure, and the timing of any decision, could dictate when his federal election-interference trial begins—or whether it proceeds at all.
Trump’s lawyers are urging the appeals court to toss the case, arguing that a former president can’t face criminal prosecution for “official acts” unless first impeached by the House and convicted by the Senate. They have framed Trump’s efforts to reverse the election results as legitimate exercises of his power falling within the outer perimeter of his responsibility as president.
“They all reflect President Trump’s efforts and duties, squarely as Chief Executive of the United States, to advocate for and defend the integrity of the federal election, in accord with his view that it was tainted by fraud and irregularity,” Trump’s lawyers wrote.
Special counsel Jack Smith’s team has countered that those efforts, including the assembly of fake slates of electors, should be viewed not as those of an officeholder fulfilling his responsibilities but of a candidate seeking office.
“Those alleged acts were carried out by and on behalf of the defendant in his capacity as a candidate, and the extensive involvement of private attorneys and campaign staff in procuring the fraudulent slates as alleged in the indictment underscores that those activities were not within the outer perimeter of the office of the Presidency,” Smith’s team argued in a late December court filing.
Trump’s pretrial defenses are moving through the courts while, on the campaign trail, he and President Biden are addressing the Capitol attack and efforts to overturn the 2020 election in divergent terms. Speaking in Valley Forge, Pa., on Saturday, Biden marked the three-year anniversary of the Jan, 6, 2021, Capitol attack with a speech warning of the threats he said Trump posed to American democracy. Trump, meanwhile, has called those convicted “the J6 hostages” and has suggested he would pardon them.
However the D.C. Circuit rules, the appeal has already achieved one desired outcome for Trump: delay.
In light of Trump’s legal challenge, the district judge overseeing his case agreed last month to temporarily freeze the criminal proceedings pending the appeal. That pause immediately raised questions about whether the trial will begin as scheduled on March 4. Judge Tanya Chutkan rejected Trump’s immunity arguments earlier in December, ruling that the Constitution doesn’t confer a “lifelong ‘get-out-of-jail-free’ pass.”
Ahead of Tuesday’s arguments, legal scholars said Trump’s appeal strikes at a central tenet of the U.S. legal system: equal justice under law. Those experts said Trump’s legal challenge amounted to a Hail Mary that would likely reach the Supreme Court.
But timing is key, they said. Even if the D.C. Circuit and then the Supreme Court reject Trump’s immunity defense, a delayed decision could prove a Pyrrhic victory for Smith’s team, potentially pushing the trial past the 2024 election. If Trump wins election, he could seek to have the federal charges against himself dismissed.
Hoping to avoid a drawn-out appeal, Smith’s team took the extraordinary step last month of seeking to bypass the appeals court and have the Supreme Court immediately take up Trump’s immunity claim. The justices declined to do so, leaving the appeal initially in the hands of the three-judge appeals panel.
If the immunity question rises to the justices, it will bring to three the number of cases tied directly to Trump they will rule on before July. On Friday the Supreme Court agreed to hear his appeal of Colorado’s landmark ruling that he is an insurrectionist and unfit for public office. And last month the justices said they would consider whether prosecutors exceeded the scope of federal obstruction laws in hundreds of criminal cases relating to the Jan. 6, 2021, attack on the Capitol, and in Smith’s case against Trump.
In court papers with the D.C. Circuit, both sides have underscored that a former president has never previously been charged with committing crimes while in office. The unprecedented nature of the case has left the courts without directly applicable legal precedent on whether presidents have criminal immunity for their official actions.
Trump’s legal team has highlighted a 1982 decision involving President Richard Nixon, in which the Supreme Court held that presidents enjoy absolute immunity from civil lawsuits related to their official acts. Smith’s team has pointed to Nixon’s acceptance of a pardon amid the Watergate scandal in 1974 as reflecting the “consensus view” that a former president can face prosecution after leaving office.
In court papers, Trump’s lawyers have also argued that the former president’s indictment threatens to open an era of politically motivated retribution that “will plague our Nation for many decades to come and stands likely to shatter the very bedrock of our Republic—the confidence of American citizens in an independent judicial system.”
For their part, prosecutors have said Trump’s view of the law threatens to license presidents to commit crimes to remain in office.
“Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully,” Smith’s team wrote.
In a social-media post Monday confirming his plans to attend Tuesday’s hearing, Trump wrote that Biden “would be ripe for indictment.”
“If I don’t get Immunity, then Crooked Joe Biden doesn’t get Immunity,” Trump said.
“By weaponizing the DOJ against his Political Opponent, ME,” he added, “Joe has opened a giant Pandora’s Box.”
Write to C. Ryan Barber at ryan.barber@wsj.com and Sadie Gurman at sadie.gurman@wsj.com