By Jeremy Herb, Holmes Lybrand, Hannah Rabinowitz and Devan Cole, CNN
Washington (CNN) — A federal appeals court hears arguments Tuesday over whether Donald Trump is immune from prosecution for actions he took after the 2020 election, one of the key questions that could determine the former president’s legal and political fate in 2024.
Trump plans to attend the oral arguments in the US Circuit Court of Appeals for the District of Columbia Circuit where a three-judge panel will decide whether the federal charges brought against him by special counsel Jack Smith should be dismissed based on Trump’s claims of immunity.
Trump’s presence at the 9:30 a.m. ET hearing Tuesday – less than week before the Iowa caucuses – underscores how intertwined Trump’s legal and political worlds have become, as the former president has made the four criminal indictments against him a key part of his pitch to his supporters in the 2024 campaign.
The immunity question is ultimately expected to end up before the Supreme Court, one of several consequential questions the high court will take up related to Trump this year. On Friday, the US Supreme Court said it would review next month the Colorado Supreme Court’s unprecedented decision to remove Trump from its state ballot.
Trump faces four counts from Smith’s election subversion charges, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.
Here’s what to know for Tuesday’s arguments:
A key question for Trump’s legal peril
District Judge Tanya Chutkan has declined to dismiss the election subversion charges against Trump, ruling that he does not have absolute immunity for what he said and did after the 2020 election.
“Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” Chutkan wrote. “Former Presidents enjoy no special conditions on their federal criminal liability.”
Trump appealed that decision to the appeals court.
Trump’s attorneys have argued that his actions trying to overturn the 2020 election fell within his duties as president because Trump was working to “ensure election integrity” as part of his official capacity as president, and therefore he is immune from criminal prosecution.
Smith in a filing last month pushed back on Trump’s claims of absolute immunity, arguing that Trump’s sweeping assertion “threatens to license Presidents to commit crimes to remain in office.”
The former president has also argued that because the Senate acquitted him on an impeachment charge in the weeks after the January 6, 2021, Capitol attack, that the Justice Department cannot charge him with the same crime.
The three judges who will hear Trump’s case Tuesday are J. Michelle Childs, a Joe Biden appointee; Florence Pan, a Biden appointee; and Karen LeCraft Henderson, a George H.W. Bush appointee.
Henderson has previously heard several cases involving the former president, including whether Congress could access Trump’s tax records and whether the House could enforce a subpoena on former White House counsel Don McGahn. She has repeatedly expressed concerns about safeguarding the special protections around the presidency in her previous opinions.
Childs took the bench in July 2022. She was on Biden’s shortlist to replace outgoing Supreme Court Justice Stephen Breyer, but he ultimately picked Ketanji Brown Jackson. Before joining the appeals court, Childs was a federal judge in North Carolina since 2010.
Pan was nominated to the appeals court by Biden in mid-2022 to fill the seat vacated by Jackson after she was confirmed to the Supreme Court. Previously, Pan served as a judge for the Superior and District courts in DC for more than 10 years.
John Sauer will be the attorney arguing on behalf of Trump.
James Pearce will be the attorney arguing on behalf of the special counsel’s office.
Trial timing and 2024 campaign on collision course
The appeals court hearing will be the latest courtroom that Trump will turn into part of his presidential campaign.
Trump is attending the arguments Tuesday, though he will not be asked any questions by the judges directly. He then goes ahead to Iowa ahead of Monday’s caucuses, though he will return to the east coast to attend closing arguments in his New York civil fraud trial on Thursday. (Both court appearances are voluntary.)
Trump has made the four criminal indictments against him, including two from Smith, a central part of his presidential campaign, and he’s repeatedly railed against both the criminal and civil prosecutions against him as alleged election interference.
For Smith, the appellate court’s work is significant not just for his indictment to withstand the former president’s challenge, but also because it will affect how quickly the trial against Trump could take place.
Chutkan had originally scheduled the election subversion trial for March, but the trial deadlines are paused while Trump’s appeal moves through the appeals process. The question of presidential immunity is likely to end up at the Supreme Court regardless of how the appellate court rules, meaning the timing of the trial remains up in the air and could be delayed.
Smith took the extraordinary and unusual step late last year to ask the Supreme Court to skip the appeals courts and fast-track the issue of presidential immunity. But the justices denied that request without comment or noted dissent.
Once Tuesday’s hearing concludes in the federal election subversion case, the panel of appeals judges could issue a written ruling at any time. It will not rule from the bench.
In addition to an appeal to the Supreme Court, either side could also ask for the case to be reheard by the entire DC Court of Appeals, which could result in more delays.
Immunity question goes beyond special counsel case
The question of presidential immunity goes beyond the special counsel’s election subversion case.
On Monday, Trump made the same claims of immunity in the election subversion case brought by Fulton County District Attorney Fani Willis, saying it should be thrown out because he is protected from prosecution under presidential immunity.
Several courts have already ruled against Trump on the question of presidential immunity and civil cases brought against the former president.
The DC appeals court ruled late last year that Trump was not immune from civil lawsuits brought by Democrats in Congress and Capitol Police officers related to the January 6, 2021, US Capitol attack.
“(W)hen he acts outside the functions of his office, he does not continue to enjoy immunity,” the court opinion reads. “When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”
A federal appeals court in New York also rejected Trump’s claims of presidential immunity in his effort to delay his defamation trial in a case brought by E. Jean Carroll. A trial is set to begin next week to determine damages Trump owes Carroll for defamation, after a federal appeals court denied Trump’s effort to delay the trial.
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