Trump attorney argues Biden is ‘prosecuting his number one political opponent’ at immunity hearing

Former President Trump’s attorney argued before a federal appeals court Tuesday that the former commander-in-chief and 2024 frontrunner has presidential immunity from charges stemming from Special Counsel Jack Smith’s investigation, while warning that President Biden is “prosecuting his number one political opponent and his greatest electoral threat.” 

Both Trump and Smith attended the hearing before the federal D.C. Appeals Court on Tuesday.

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The panel of three judges, two of whom were appointed by President Biden, heard arguments from Trump attorneys and Special Counsel Jack Smith’s team.

Donald Trump and Jack Smith

Trump attorney D. John Sauer argued that the president has “absolute immunity,” even after leaving office — an argument that the judges appeared to be skeptical of.

Judge Karen Henderson, an appointee of former President George H.W. Bush, fired back, saying: “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal law.” 

But Sauer argued that Biden, “the current incumbent of the presidency is prosecuting his number one political opponent and his greatest electoral threat.”

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Meanwhile, Smith’s team argues that presidents are not entitled to absolute immunity and that Trump’s alleged actions fall outside a president’s official job duties.

“The president has a unique constitutional role but he is not above the law. Separation of powers principles, constitutional text, history, precedent and immunity doctrines all point to the conclusion that a former president enjoys no immunity from prosecution,” prosecutor James Pearce said, adding that a case in which a former president is alleged to have sought to overturn an election “is not the place to recognize some novel form of immunity.”

Henderson pressed Pearce on how the court could come to its decision in a way that would not open the “floodgates” of investigations against ex-presidents.

Pearce said he did not feel there would be “a sea change of vindictive tit-for-tat prosecutions in the future,” and said the allegations against Trump are unprecedented.

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“Never before has there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system,” Pearce said. “And frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism by which to reach that criminally.”

Pearce said the country would be in for a “frightening future” if Trump is not prosecuted for alleged crimes.

But Sauer pushed back on those “floodgates,” and said that the “floodgates will be opened.”

“We are in a situation where we have prosecution of the chief political opponent who is winning in every poll in the national election upcoming next year and is being prosecuted by the administration he’s seeking to replace,” Sauer said. “That is the frightening future that is tailor-made to launch cycles, recrimination that will shake our republic for the future.”

It is unclear when the court will make its decision.

Trump spoke outside the courtroom shortly after the hearing concluded. 

Former U.S. President Donald Trump waves to the crowd on the field during halftime in the Palmetto Bowl between Clemson and South Carolina at Williams Brice Stadium on November 25, 2023 in Columbia, South Carolina. (Sean Rayford/Getty Images)

“I think it is very unfair when a political opponent is prosecuted by Biden’s DOJ,” Trump said. “They are losing in every poll, they are losing in almost every demographic.” 

Trump added: “I think they feel this is the way they are going to try and win. It is a very bad precedent.” 

Trump said his prosecution would be “the opening of a Pandora’s box, and it is a very sad thing that’s happening with this whole situation.” 

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“They talk about a threat to democracy–that’s the real threat to democracy,” Trump said. 

Trump stressed that as president, “you have to have immunity,” and maintained he did “absolutely nothing wrong.” 

The 2024 GOP frontrunner said he believes that “by normal standards, if it weren’t me, it would be the end of this case.” 

“But sometimes they look at me differently than they look at others. Its very bad for our country,” he said. 

Trump added: “You can’t have a president without immunity….A president has to have immunity.” 

Trump again said he did “nothing wrong” and said 2020 was “a rigged election.” 

“And everybody knows it,” Trump said. 

Smith’s case against Trump is on pause as Trump’s attorneys appeal the case and argue that presidential immunity protects him from being prosecuted. The trial had been set to begin on March 4.

In August, Trump pleaded not guilty in federal court to all four federal charges stemming from Smith’s investigation into 2020 election interference and the Capitol riot on Jan. 6, 2021.

Trump is charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights.

Smith filed an argument to dispute Trump’s claim of presidential immunity in the U.S. Court of Appeals for the District of Columbia.

The U.S. Supreme Court recently rejected Smith’s appeal to expedite their assessment of the immunity claim before it went fully through a federal appeals court. Trump’s legal team asked the court to deny Smith’s request.

Fox News’ William Mears and The Associated Press contributed to this report. 

Brooke Singman is a political correspondent and reporter for Fox News Digital, Fox News Channel and FOX Business.

Brooke joined Fox News in 2014. She covers the White House, presidential politics, federal investigations, national security, elections and more.

Brooke graduated from Boston University in 2014 with a B.S. in Broadcast Journalism and a minor in Political Science.

You can reach her at Brooke.Singman@Fox.com or Twitter.