WASHINGTON — Former President Donald Trump’s claim that he was immune from being prosecuted for any crimes he committed while trying to stay in office after losing the 2020 election was always a long shot. But in an opinion Tuesday eviscerating his assertion, three federal appeals court judges portrayed his position as not only wrong on the law but also repellent.
“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” they wrote, adding, with an emphatic echo, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
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The 57-page opinion was issued on behalf of all three members of a panel of the U.S. Court of Appeals for the District of Columbia Circuit. They included two Democratic appointees and, significantly, Judge Karen Henderson, a Republican appointee who had sided with Trump in several earlier legal disputes.
The ruling systematically weighed and forcefully rejected each of Trump’s arguments for why the case against him should be dismissed on immunity grounds. The resounding skepticism raised the question of whether the Supreme Court — to which Trump is widely expected to appeal — will decide there is any need for it to take up the case.
On the one hand, the ruling unanimously answered each question put forward by Trump’s defense team, affirming a similar ruling by the trial judge overseeing the criminal case, Tanya Chutkan of the U.S. District Court for the District of Columbia. It was far from clear whether a majority of Supreme Court justices would find anything to disagree with in its conclusions.
Still, Trump’s claim of total immunity introduces a momentous legal issue the Supreme Court has never considered; no former president has ever been charged with crimes before, so there is no direct precedent. Normally, the justices might see it as appropriate to weigh in, too, even if it were merely to affirm an appeals court’s handiwork.
But an intervention by the court — especially one that would uphold the result — could risk being seen as a political act. Taking up the case would further delay Trump’s trial, which Chutkan had pushed back from its March 4 date as the immunity appeal dragged on.
Trump, the overwhelming favorite to win the Republican presidential nomination, has long pursued a strategy of trying to run out the clock on litigation. If he were to return to the White House before any trial, he could use his executive power to shut down the case.
The appeals court appeared to acknowledge this tack by discouraging Trump from asking the full appeals court to intervene, which would have allowed him to drag out proceedings even further. It said Chutkan could resume trial preparations next Tuesday unless Trump had asked the Supreme Court to halt proceedings by then. It would take the votes of five of the nine justices to issue such an order.
Like Chutkan, the panel also decided the substance of the immunity question in a way that forecloses the need for additional fact-finding or analysis about some of the questions underlying his immunity claim: specifically, whether his efforts to subvert the election were official actions he took in his capacity as the president or personal actions he took in his capacity as a presidential candidate.
While casting doubt on whether Trump’s actions were official, the panel said it made no difference because former presidents have no immunity from criminal prosecution either way.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
The panel then marched through each of Trump’s arguments, repudiating every one in turn. While Trump’s lawyers had listed various reasons he should be deemed categorically immune, there were four major ones.
First, Trump claimed that under the separation of powers, the judicial branch lacks the authority to review a president’s use of his executive powers.
But the panel cited a series of cases in which courts had reviewed executive branch actions. Those include the landmark 1803 case that established judicial review over acts that officials in the executive branch are bound by law to perform, Marbury v. Madison, and a famous Korean War-era case deeming unlawful President Harry Truman’s seizure of steel mills.
It also noted that the Supreme Court has held that presidents are subject to subpoenas in criminal cases. And it pointed out that under certain circumstances, members of Congress and judges can be held criminally liable for acts undertaken in their official capacities.
“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct,” the judges wrote.
Second, Trump had argued that there is a public interest reason for presidents to be immune from prosecution: Society will be better off if presidents do not fear future charges, which could chill their exercise of their constitutional functions. Finding otherwise, a lawyer for Trump had warned, would open the floodgates to any number of legal challenges against former presidents.
But the panel expressed doubt that the prospect of later criminal charges would inhibit presidents. For one, while the Supreme Court has disallowed lawsuits against presidents over their official actions, the panel noted that there are far greater limitations to bringing criminal charges, so “the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.”
The panel added that there was no disadvantage to dissuading presidents from breaking the law. It observed, “The prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior.”
Former presidents have understood themselves to be subject to the possibility of criminal prosecution, the panel said, pointing to President Gerald Ford’s pardon of President Richard Nixon after Watergate — and Nixon’s acceptance of the pardon.
The panel also emphasized that both the public and the executive branch have a countervailing interest in holding people accountable for violating criminal law. That is especially true, it added, of this particular case, where Trump is accused of subverting the will of voters to stay in office.
“Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new president,” the three judges wrote. The criminal charges against him, if proven true, amount to “an unprecedented assault on the structure of our government,” they added.
Third, Trump had asserted that former presidents cannot be prosecuted for official actions unless Congress has first impeached and convicted them. Since he was acquitted at his impeachment trial over the events of the Jan. 6 riot — the 57 votes to convict fell short of the two-thirds majority necessary — he argued the case must be thrown out.
The panel strongly repudiated that argument, saying his “interpretation runs counter to the text, structure and purpose of the impeachment judgment clause.” The impeachment and criminal justice systems operate on separate tracks with separate purposes, they wrote.
That interpretation, the judges also wrote, implausibly implies that all civil officers, not just presidents, are immune from prosecution over official crimes unless they are first convicted in a Senate impeachment trial. In any case, that would “leave a president free to commit all manner of crimes with impunity, so long as he is not impeached and convicted.”
Finally, Trump’s team contended that because he was acquitted in his Senate impeachment trial, prosecuting him in criminal court violated the principle of “double jeopardy,” the idea that if one is found not guilty, then prosecutors cannot bring a second case.
But the panel was unimpressed. It reiterated that the two processes are unrelated, while noting that the charge the House brought against him, incitement, was not among the charges a grand jury indicted him over.
The judges also gestured to the political nature of Trump’s acquittal, including noting that 30 senators had justified their votes to acquit him on the grounds that his term in office had run out before the trial.
“As a result of the political nature of impeachment proceedings,” they wrote, “impeachment acquittals are often unrelated to factual innocence.”
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