Appeals Court Denies Trump's Immunity Claim
A three-judge panel of the D.C. Circuit Court of Appeals issued a unanimous decision affirming that former President Trump is not immune from criminal prosecution for crimes committed in office or otherwise. The decision was made in response to Trump’s argument that he can not be charged or tried for any crimes he may or may not have committed while trying to overturn the 2020 election, but it is expected to apply to all of the charges stemming from his actions in office.
The judges, two liberal, one conservative, took less than a month to deliberate, decide, and draft their opinion. Presidential immunity may apply to civil lawsuits related to a sitting president’s official duties, they ruled, but it does not shield them from criminal prosecution. Former presidents have no such protection.
Trump’s claim of categorical immunity was rejected in part thanks to the example set by President Richard Nixon. If Nixon were indeed immune to all prosecution, the judges wrote, he wouldn’t have agreed to resign from office in exchange for a pardon from crimes associated with the Watergate scandal. That suggested that the idea of total immunity has no historical basis. Instead, President Nixon's resignation saved him from suffering the fate of being the first president to face criminal prosecution – a title now held by Trump.
Trump argued that impeachment and removal by Congress is the sole remedy for prosecuting a criminal president. The decision noted that Trump was impeached for his role in inciting a violent attempted insurrection after losing to President Joe Biden. Paradoxically, former Senate Majority Leader Mitch McConnell reasoned that impeachment was an inappropriate remedy for the situation … and suggested that criminal prosecution was the only appropriate form of punishment.
The judges rejected the idea of impeachment as the sole remedy in no uncertain terms.
Arguments for and against the concept of ultimate immunity from criminal prosecution made headlines, and for good reason. After pressing attorney John Sauer with questions about the limits of presidential immunity, the judges began suggesting increasingly extreme examples of criminality. They eventually landed on something that Americans would hopefully find abhorrent: What if the president ordered Seal Team Six to assassinate his/her political opponents? What then?
Mr. Sauer contended that the president would still be immune from prosecution before – or possibly even after – being impeached and removed from office. As noted, this would essentially let the president do anything without fear of consequences so long as there were enough partisan Senators to prevent removal.
The flaw in this reasoning is readily apparent. If that’s true, doesn’t that mean that President Biden could, in theory, do the same to his political opponents? Like, say, the Republican candidate for president?
Trump’s counsel argued that making a president subject to prosecution would create a chilling effect, whereby a president’s decision-making would be hampered by the constant fear of prosecution. The judges’ response was brief:
"Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior."
The idea of new presidents having their predecessors hauled in for prosecution was similarly easy to dismiss for one simple reason: No president has ever done that in American history. Nor, in fact, is there any constitutional or statutory authority for a president to control federal criminal prosecutions, and it is not clear federal prosecutors could unquestioningly follow a president's direction in any case.
The judges put their decision on hold for six days to let Trump decide how to proceed. He could take his case to the Supreme Court for an emergency hearing, but it’s hard to imagine SCOTUS wanting taking up the case if it doesn't have to, particularly considering how involved it already is in the 2024 election.
Trump could return to the D.C. Circuit, but the judges made it clear that doing so wouldn’t stop the case from being returned to Judge Chutkan. Doing so would require a majority opinion of the 11 active appellate judges on the Circuit, which is unlikely for any number of reasons.
Is this an unequival defeat for Trump? Perhaps, but most observers noted this was a long-shot argument to begin with, and Trump may be betting more on reelection and self-pardoning as the only way to escape conviction for the 91 offenses that face him.
- The Trump Inquiries, in a Nutshell (FindLaw’s Courtside)
- Analyzing the Trump Disqualification Argument in the Wake of the Colorado Supreme Court’s Decision (FindLaw’s Law and Daily Life)
- Disqualification from Public Office Under the 14th Amendment (FindLaw’s U.S. Constitution)
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