Appeals Court Rejects Trump’s Immunity Claims, Setting Up Supreme Court Review

The high court late last year declined special counsel Jack Smith’s request to step in and rule on the question immediately.

WASHINGTON — A federal appellate court has unanimously rejected Donald Trump’s argument that his attempts to overturn the 2020 election he lost and which led to the violent attack on the Capitol on Jan. 6, 2021, were “official” acts and therefore immune from prosecution, likely setting up an appeal to the U.S. Supreme Court.

The former president had asked the court to overturn District Judge Tanya Chutkan’s ruling in December that Trump’s actions were not part of his duties as president and that holding that office did not give him a “get out of out jail free” card.

The Court of Appeals for the District of Columbia Circuit gave Trump until next Monday to file an appeal with the Supreme Court to get a stay of its ruling until the high court decides whether to take the case.

The appellate court decided that “for the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”

Former U.S. President Donald Trump departs the Waldorf Astoria where he held a press conference following his appearance in court on Jan. 9 in Washington, D.C.
Former U.S. President Donald Trump departs the Waldorf Astoria where he held a press conference following his appearance in court on Jan. 9 in Washington, D.C.
Kent Nishimura via Getty Images

The opinion stated, “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

In a prepared statement, campaign spokesman Steven Cheung essentially repeated an argument that the coup-attempting former president has repeatedly posted on his social media platform.

“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function!” Cheung wrote. “President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the presidency and the Constitution.”

But in a thorough, 57-page opinion, a three-judge panel of the appeals court systematically knocked down each of Trump’s arguments for immunity.

Trump claimed that the authors of the Constitution wanted to protect presidents from nuisance, politically motivated prosecutions, citing a quote from Alexander Hamilton. But the judges ruled that Trump’s lawyers were misrepresenting the gist of Hamilton’s argument.

“In the very next sentence of the same essay, Hamilton stresses that the president must be unlike the ‘king of Great Britain,’ who was ‘sacred and inviolable,’” the judges wrote.

On Trump’s argument that the Constitution’s “impeachment judgment clause” meant that presidents could be criminally prosecuted only if they had first been impeached and convicted by Congress, the court ruled that Trump was again misreading the passage.

“In drafting the Impeachment Judgment Clause, to the extent that the Framers contemplated whether impeachment would have a preclusive effect on future criminal charges, the available evidence suggests that their intent was to ensure that a subsequent prosecution would not be barred,” the judges wrote.

They pointed out that an impeachment was by its nature a political act, and acquittal did not mean innocence.

“Former President Trump’s acquittal in his impeachment trial on the charge of inciting insurrection makes this point. The forty-three senators who voted to acquit him relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense,” the judges wrote, pointing out Senate GOP leader Mitch McConnell’s claim at the time that the Senate did not have the authority to convict a former president.

The judges wrote that if Trump’s interpretation was correct, it essentially allows presidents carte blanche to set off on crime sprees, either at the end of their terms or if they are assured senators would not convict them. “His proposed interpretation still would leave a president free to commit all manner of crimes with impunity, so long as he is not impeached and convicted,” the court found.

Finally, the idea of a president being completely immune from prosecution for actions taken while in office had no precedent in U.S. history or law, they concluded.

“Former President Trump’s claimed immunity would have us extend the framework for presidential civil immunity to criminal cases and decide for the first time that a former president is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility,” they wrote.

The three judges ― one appointed by former President George H.W. Bush and two appointed by President Joe Biden ― held oral arguments in the case on Jan. 9, during which all three appeared skeptical of Trump’s view that former presidents can never be charged with a crime unless they have been impeached and removed from office for the same or similar charges.

Judge Florence Pan asked Trump’s lawyer, with Trump seated just a few feet behind him, if a president could order SEAL Team Six to assassinate a political rival and never be prosecuted. Trump’s lawyer eventually agreed that the answer was yes.

Trump has previously said he hopes the Supreme Court’s conservative majority, particularly the three justices he appointed, would rule in his favor on his criminal cases.

The Supreme Court previously declined to review the immunity question at the request of special counsel Jack Smith, who had asked justices to step in and decide the matter immediately.

Chutkan had slated Trump’s trial on charges of conspiracy and obstruction of an official proceeding to start in early March, but last week said the case could not move forward until Trump’s appeal was settled.

Should Trump win the White House again and the case remains unfinished, he would have the authority to order the Department of Justice to drop all federal charges against him — a prospect that appears to be behind Trump’s efforts to delay the trial as much as possible.

Trump is facing a second federal prosecution in South Florida for his refusal to turn over secret documents he took with him from the White House to his Palm Beach country club. In addition, he is under indictment in Georgia for his attempt to overturn his election loss in that state and in New York for falsifying business records, which prosecutors say he did to hide a $130,000 hush money payment to a porn star.

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