SARAH D. WIRE | Contributor
A District of Columbia appellate court panel on Tuesday unanimously rejected former President Trump’s claim that he is immune from prosecution on criminal charges that he plotted to overturn the 2020 election results. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses 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 bipartisan three-judge panel write in its opinion. The opinion systematically tore through the arguments presented by Trump’s legal team. “At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches. Presidential immunity against federal indictment would mean that, as to the president, the Congress could not legislate, the executive could not prosecute and the judiciary could not review. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter,” the opinion states.
The judges also said that the gravity of the charges brought against Trump weighed in their decision, considering the people’s interest in elections as a check on presidential power. “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,” it states.
Trump is charged with four federal felonies including conspiring to obstruct the official certification of President Biden’s election victory and seeking to defraud Americans of their rightful votes. The decision is likely to be quickly appealed to the Supreme Court. Trump has until Monday to appeal, the judges ordered, otherwise the case can move forward.
He could ask the Supreme Court for a stay to extend that date. In December the high court refused an emergency appeal by special counsel Jack Smith to take the case before the appellate court weighed in. Now that the U.S. Court of Appeals for the D.C. Circuit has ruled, the Supreme Court may agree to resolve the constitutional question raised by Trump’s claims, or it could let the appellate ruling stand, which would amount to a defeat for Trump.
The former president had signaled plans to use presidential immunity as a defense in all four of his criminal cases. What happens next in the immunity case will likely determine when Trump’s election interference trial begins. Earlier this month the March 4 trial was removed from Judge Tanya Chutkan’s calendar. Pretrial filings have been on hold since December. Trump’s lawyers said the criminal charges should be thrown out on the grounds that a former president cannot be charged with a crime for his “official acts” while in the White House.
But the opinion rejected that, saying “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.” Trump and his legal team argued that a president cannot make necessary decisions for the country if they are worried about potentially facing criminal charges when they leave office. “Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end,” Trump said in an all-capital letters Truth Social post Jan. 20. “Even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad.”
Trump campaign spokesman Steven Cheung said in a written statement that Trump will appeal to the Supreme Court. “Without complete immunity, a president of the United States would not be able to properly function!” he wrote. “Prosecuting a president for official acts violates the Constitution and threatens the bedrock of our republic.”
The opinion also dismisses that argument, saying it does not live up to historical precedent and that other former presidents have publicly recognized they were not wholly immune from criminal prosecution for official acts. “As former President Trump acknowledges that this is the first time since the founding that a former president has been federally indicted. Weighing these factors, we conclude that the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears slight,” it states. The panel also dismissed the argument that impeachment is the proper form of punishment.
Trump was impeached by the House twice, including for his alleged efforts to remain in office, but he was not convicted by the Senate. Trump’s argument “would leave a president free to commit all manner of crimes with impunity, so long as he is not impeached and convicted,” the judges said. “No court has previously imposed such an irrational ‘impeachment first’ constraint on the criminal prosecution of federal officials.” Smith, who is prosecuting Trump, argued that criminal charges can be brought once a president leaves office, particularly for actions that don’t relate to his official duties.
That includes, Smith says, Trump’s efforts to overturn the election results. The special counsel said it would be dangerous for the courts to rule that a president or former president has total immunity from criminal charges. The three-member D.C. panel included Judge Karen Henderson, an appointee of President George H.W. Bush, and Judges J. Michelle Childs and Florence Pan, both Biden appointees.
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