As the longest-serving jurist on this panel, and the only Republican appointee among these three, what Chief Judge Karen Henderson does in this case will be closely watched and will be a signal to many other judges who could also be called upon. ask them to consider these issues, including the Supreme Court.
Henderson was skeptical that Donald Trump was acting within his official duties when he tried to overturn the results of the 2020 presidential election, saying Trump lawyer John Sauer’s arguments seem “paradoxical.”
“I think it’s paradoxical to say that your constitutional duty to see that the laws are faithfully executed allows you to violate criminal law,” Henderson said.
Henderson has had several cases before her about the American presidency and has written extensively about the presidency and how courts should think about protections around it.
He’s even been on an appeals court panel for a previous Trump case, when he questioned Congress’s ability to receive his tax returns from the IRS after he left office. Surprisingly, Henderson in oral arguments in that case asked whether there should have been special consideration if Trump were to run for office again, which he is now doing. (His tax returns were eventually released, following court approval.)
But in a concurring opinion that Congress could obtain Trump’s tax returns, Henderson noted that he believed “the burdens borne by the Executive Branch are more severe and deserve much closer scrutiny” than others on the panel said. at that moment.
Henderson also previously had to consider immunity surrounding the presidency, when he served on the D.C. Circuit panel over a congressional subpoena to Trump’s then-White House counsel Don McGahn. She wrote at the time that McGahn could not avoid fully responding to his subpoena by claiming absolute immunity around the presidency, but he could invoke some protections around the presidency to limit what he would have to say to Congress.
In his concurring opinion in that case, he noted that criminal investigations could reach further into the bubble surrounding the presidency because of the needs of the grand jury, and that lawsuits against sitting presidents for their unofficial acts could not be avoided with a claim for temporary presidential immunity.
