Republican presidential candidate former President Donald Trump speaks after meeting with members of the International Brotherhood of Teamsters at their headquarters in Washington, Wednesday, Jan. 31, 2024. (AP Photo/Andrew Harnik)
The U.S. Court of Appeals for the District of Columbia unanimously ruled on Tuesday that Donald Trump is not immune from criminal indictment in Washington, D.C., where he faces four felony charges alleging he criminally conspired to overturn the results of the 2020 election.
The ruling was expected after the former president's lawyer withered under questioning during oral arguments before just three judges on the appellate panel. With Tuesday's ruling from the appeals court, the panel has now asked that the case go back to U.S. District Judge Tanya Chutkan in Washington, D.C. by Feb. 13. unless Trump, as it is expected, appeals directly to the U.S. Supreme Court.
Trump already has a date with the Supreme Court this week on a separate matter — oral arguments weighing his disqualification from the presidential ballot under the Constitution's insurrection clause kick off Thursday morning.
In the meantime, the 57-page per curiam ruling straightaway put Trump into a category of citizen first, former president second:
"For the purpose of this criminal case, former President Trump has become citizen Trump, with all the defenses of of any other criminal defendant. But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution," the ruling states.
On the question of executive immunity, the Supreme Court "has consistently held that even a sitting President is not immune from responding to criminal subpoenas issued by state and federal prosecutors," the appeals court found, noting the question that was not only resolved in United States v. Nixon and in United States v. Burr more than a century before it, but was also established in Trump v. Vance in 2020.
Presidents are immune from civil prosecution but the civil liability framework Trump would have the court extend to criminal matters is not possible, the court explained.
Trump's attorney had argued he was immune in three ways: his conduct was not eligible for judicial review under the separation of powers doctrine; that the executive branch could not be infringed on as a result; and that a clause known as the Impeachment Judgment Clause flatly barred any criminal prosecution unless the former president had been impeached and convicted by Congress on that charge.
On the separation of powers question, the court wrote that "it is settled law" that it the doctrine "does not bar every exercise of jurisdiction over the presidents of the United States" and that as it was determined in U.S. v Nixon, there is not an "absolute, unqualified presidential privilege of immunity from judicial processes under all circumstances."
The court also found that Trump's oft-repeated claims in and out of court that a president "can never be examinable by the courts" is a misreading of Marbury v. Madison, the very case which established judicial review on the presidency and distinguished between ministerial and discretionary duties, providing a check on a president's political will and power.
It is also a misreading of several important cases that came after, including matters which put checks on powerful offices from the president to the postmaster general:
But as the Supreme Court has unequivocally explained: No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
This may sound familiar to Trump. His appointee, Supreme Court Justice Brett Kavanaugh, concurred with this concept in Trump v. Vance, the appeals court noted.
The separation of powers argument advanced by Trump also falls apart when analogous considerations are made for legislators and judges.
Even they, when they operate "outside of constitutionally protected legislative conduct" are subject to criminal liability.
The Supreme Court held this finding in 1966 involving the case of a congressman who was criminally charged with conspiring to pressure the Justice Department to toss pending indictments of a loan company and its officer for mail fraud.
While that congressman's speech from the House floor couldn't be used to prosecute him because of his constitutional immunity, the high court made clear that the lawmaker could be retried on the same count "wholly purged of elements offensive to the Speech and Debate clause," Tuesday's opinion notes.
Beyond this, there is also a genuine public interest in criminal accountability which "outweighs the potential risk of chilling Presidential action and permitting vexatious litigation," the court found.
Trump has claimed if a president can be sued criminally, he will be unable to act "fearlessly" and "impartially."
But this is a step too presumptuous in the appeals court's eyes.
In Nixon, for example, the court found that it could not conclude whether presidential advisors would be "moved to temper the candor of their remarks" under the meer possibility that their conversations would be called for criminal prosecutions.
They wrote Tuesday:
We cannot presume that a President will be unduly cowed by the prospect of post-Presidency criminal liability any more than a juror would be influenced by the prospect of post-deliberation criminal liability, or an executive aide would be quieted by the prospect of the disclosure communications in a criminal prosecution.
There is also evidence on the record to show that Trump himself does not believe he is wholly immune from criminal liability for official acts during his presidency.
When Trump was impeached the second time in 2021 for incitement of insurrection on Jan. 6, his own lawyers argued that instead of impeaching him, the "appropriate vehicle" would be the judicial process, beyond the bounds of Congress.
It was a nearly three years ago to the day, in fact, that Trump's lawyers argued before Congress: "We have a judicial process…[and] an investigative process… to which no former officeholder is immune."
To treat Trump as totally immunized from criminal justice "would 'disturb the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions'" and to such an extent that it would utterly undermine the function of the separation of powers altogether, the court ruled.
Trump had a profound duty to uphold as president before and on Jan. 6 and he vowed to uphold the laws.
That "Take Care Clause" cannot be mere lip service.
"It would be a striking paradox if the president who alone is vested with the constitutional duty to 'take care that the Laws be faithfully executed' were the sole officer capable of defying those laws with impunity," the opinion states.
Former President Trump's alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump's actions would 'further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.'
To go along with Trump's line of reasoning, the appeals court added, "would collapse our system of separated powers."
The defense's position at oral arguments on the effect of the impeachment clause on criminal prosecution was entirely shot down throughout the hefty ruling.
Trump's theories were counter to historical evidence and when his team pointed to "one sentence" in the whole of the Federalist Papers to argue otherwise, this was a misreading, too.
"It strains credulity that [Alexander] Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress," the court wrote.
The argument that the indictment against him in Washington, D.C. should be dismissed on grounds of double jeopardy should be ignored. An impeachment and conviction by Congress is a political process and is not the same as a criminal prosecution nor does it bar one:
Under precedent interpreting the Double Jeopardy Clause, former President Trump's impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.
"Impeachment is not a criminal process and cannot result in criminal punishment," the ruling reiterated.
A spokesperson for Trump nor his attorney could immediately be reached for comment by Law&Crime on Tuesday.
