The judges tasked with ruling on Donald Trump’s immunity claims have warned both the former president and special counsel Jack Smith to be prepared to discuss “discrete issues” raised in past filings, court records show.
The U.S. Court of Appeals D.C. Circuit Tuesday told lawyers on both teams they should be ready by Jan. 9 to present oral arguments on issues raised in amicus briefs, or information provided by supporting groups.
While it remains unclear what those discrete issues may be, amicus briefs have come in from high-ranking Republicans, attorneys who served in Trump's White House and even a legal watchdog group challenging the D.C. Circuit court's jurisdiction to rule on presidential immunity at all.
In mid-December, a group of Republican lawmakers — including Deputy Attorney General Donald Ayer and former Justice Department official Barbara Comstock — filed an amicus brief backing Smith’s claim that there is no legal precedent for blanket presidential immunity.
The conservatives — citing media reports that Trump considered deploying the military to overturn the 2020 election — argued establishing an immunity precedent would leave the White House vulnerable to hostile takeovers.
"These terrifying possibilities are real,” the brief states, “not remote.”
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Another brief in support of Smith comes from a group that includes conservative attorney George Conway and Ty Cobb, who served as Special Counsel to the President in the Trump Administration from 2017 to 2018.
“The Constitution does not confer any kind of immunity upon former Presidents for conduct that violates the criminal laws of the United States,” the group wrote, “and instead contemplates that a former President might be prosecuted for crimes committed in office.”
Legal experts believe Trump’s appeal — filed in his federal election interference case — serves more as a delay tactic than a legitimate legal defense.
Should Trump succeed in pushing his trial date past a victorious presidential election in November, he could order the Justice department to drop the case against him.
Trump has pleaded not guilty to criminal charges.
