Trump not immune from criminal prosecution, Appeals court ruled

Key issues

• A federal appeals court in Washington, D.C., ruled that Donald Trump does not have immunity from prosecution in his election case as a result of having been president at the time of the alleged crimes.
• Trump is expected to ask the Supreme Court to overturn the appeals court ruling.
• The case is related to Trump’s attempt to reverse his 2020 election loss to President Joe Biden.

Donald Trump is not immune from criminal prosecution for efforts to reverse his loss in the 2020 presidential election, a federal appeals court said in aunanimous ruling Tuesday.

A three-judge appeals panel flatly rejected Trump’s argument that he could not be charged in the case because he was president at the time of the alleged crimes.

“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” said the panel in the U.S. Court of Appeals for the District of Columbia Circuit.

“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 in a 57-page opinion. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The ruling is the latest major legal loss for Trump, the front-runner for the Republican presidential nomination.

He is expected to quickly ask the Supreme Court to overturn the decision or ask the appeals court’s entire judicial lineup to rehear the case.

But the new ruling, which upheld a decision by the district court judge overseeing the case, increases the chances that Trump will stand trial before November’s election.

Trump campaign spokesman Steven Cheung decried the decision, claiming that without “complete” presidential immunity, “every future President who leaves office will be immediately indicted by the opposing party.”

Smith’s prosecution “violates the Constitution and threatens the bedrock of our Republic,” Cheung said in a statement.

“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution.”

Trump’s immunity claim stems from the criminal election interference case being prosecuted in U.S. District Court in Washington, D.C., by Department of Justice special counsel Jack Smith.

Smith charged Trump with four counts related to attempts by him and alleged co-conspirators to overturn his electoral defeat by President Joe Biden in 2020.

Those efforts culminated on Jan. 6, 2021, when a mob of Trump supporters stormed the U.S. Capitol, disrupting for hours a joint session of Congress meeting to confirm Biden’s victory. Trump had urged a crowd at a rally beforehand to march to the Capitol, and had pressured his vice president, Mike Pence, to refuse to accept Electoral College results at the joint session.

Trump has pleaded not guilty in the case.

Trump’s lawyers had made three arguments to the appeals panel in claiming presidential immunity from the charges.

They said federal courts lack the authority to review a president’s official acts because of the Constitution’s separation of powers doctrine, and argued that policy considerations rooted in that doctrine required immunity to avoid affecting executive branch functions.

They also argued that “the Constitution’s Impeachment Judgment Clause ‘does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him,’ ” the appeals panels noted.

But the panel rejected all three of those arguments “both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular.”

“We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed,” said the panel, which was comprised of Judges Florence Pan, Michelle Childs and Karen LeCraft Henderson.

“We conclude that ‘[concerns] of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case.”

Pan and Childs were nominated to the appeals court by the Democrat Biden. Henderson was nominated by former President George H.W. Bush, a Republican.

While the ruling mostly struck a measured, dispassionate tone, the judges at times sounded alarmed when they warned that Trump’s view of presidential powers would have dire consequences.

“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,” they wrote.

“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.”

Trump’s lawyers, seeking to dismiss the election interference case, had argued to U.S. District Judge Tanya Chutkan that Trump has “absolute immunity” from prosecution because the charges relate to official acts performed while he was president.

After Chutkan declined to dismiss the charges, Trump’s attorneys brought the immunity argument to the appeals court.

That move put the case on hold in Chutkan’s court, and led the judge last week to indefinitely postpone the previously scheduled March 4 trial.

Smith, seeking to avoid a drawn-out legal dispute that could delay Trump’s trial, asked the Supreme Court to quickly take up the dispute. The high court declined to do so, putting the matter back into the appeals court’s hands.

Smith alleges Trump, using false election fraud claims as a pretext, tried to undo Biden’s victory through multiple criminal conspiracies.

Those allegedly include organizing slates of illegitimate pro-Trump electors in states Biden won, trying to use the DOJ to conduct “sham” election crime investigations and challenging the count of legitimate electoral votes on Jan. 6, 2021.

Trump has called the case a “witch hunt” and claimed it is intended to harm his 2024 presidential campaign. He has stoked fears that denying him immunity would open the floodgates to prosecution of former presidents.

Trump is separately charged in three other criminal cases. One of them, in Georgia state court, relates to his attempt to reverse his 2020 loss to Biden in that state.

In Florida federal court, Trump is charged by Smith with retaining classified government documents after leaving the White House, and obstructing efforts by government officials to retrieve them.

And in March, Trump is scheduled to go on trial in New York state court in Manhattan, where he is charged with falsifying business records related to a 2016 hush money payment to porn star Stormy Daniels.

Last month, a federal civil jury in Manhattan ordered Trump to pay writer E. Jean Carroll more than $83 million for defaming her when he denied her claim that he raped her in the mid-1990s.

Trump also faces a potential civil judgment of hundreds of millions of dollars in a business fraud case in Manhattan Supreme Court by the New York attorney general. The verdict in that case is expected by the end of February.

The Supreme Court, meanwhile, is set to hear oral arguments Thursday in Trump’s appeal of a Colorado Supreme Court ruling barring him from being on the presidential ballot in that state this year because of his role in trying to undo his loss in 2020.

CNBC