Trump lawyers argue that the former president is immune from prosecution

As the longest serving jurist on this panel, and the sole Republican appointee among these three, what senior Judge Karen Henderson does in this case will be closely watched and a signal to many other judges that could also be asked 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 2020 presidential election results, saying that Trump attorney John Sauer’s arguments appear “paradoxical.”

Henderson had several cases about the American presidency before her, and she’s written extensively about the presidency and how courts should think about protections around it.

She’s even been on an appeals court panel for a previous Trump case, when he challenged Congress’ ability to receive his tax returns from the IRS after he left office. Henderson at that case’s oral arguments had, surprisingly, asked if there should have been special consideration if Trump ran for office again — which he is now doing. (His tax returns were ultimately released, following the courts’ approval.)

But in a concurring opinion that Congress could get Trump’s tax returns, Henderson pointed out she believed “the burdens borne by the Executive Branch are more severe and warrant much closer scrutiny” than what others on the panel said at that time.

Henderson also previously had to consider immunity around the presidency, when she sat on the DC Circuit panel regarding a congressional subpoena of Trump’s then-White House counsel Don McGahn. She wrote at that time that McGahn couldn’t avoid responding to his subpoena entirely by claiming absolute immunity around the presidency, but could invoke some protections around the presidency to limit what he would have to say to Congress.

She noted in her concurring opinion in that case that criminal investigations could reach further into the bubble around the presidency because of grand jury’s needs, and that lawsuits against sitting presidents for their unofficial acts couldn’t be dodged with a temporary presidential immunity claim.