Appeals Court Rejects Trump Immunity Claims
Case is fast-tracked for possible Supreme Court review
Four weeks to the day after the case was argued, the U.S. Court of Appeals for the D.C. Circuit today rejected Donald Trump’s claims of absolute immunity from criminal prosecution. The 57-page ruling was unanimous and per curiam - meaning it was authored by all three judges. (More about the significance of that later.) It’s a solid, compelling, and thorough decision.
This paragraph represents the heart of the court’s opinion:
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.
Trump was expected to lose. But the strength and unanimity of the court’s opinion is a welcome result that substantially increases the likelihood his D.C. prosecution will go to trial before the 2024 election.
Before diving into the court’s analysis, let’s take a look at what happens next:
BLUF: What Happens Now?
Quick background: this appeal involves the D.C. federal indictment of Donald Trump brought by special counsel Jack Smith, charging Trump with attempting to overturn the 2020 election. Trump moved to dismiss the indictment based on claims of presidential immunity and double jeopardy. Judge Tanya Chutkan denied those motions in December. Trump appealed to the D.C. Circuit and the case has been on hold pending the outcome of that appeal. Judge Chutkan recently vacated the original March 4 trial date, saying she would set a new date after the case returns to her.
After taking longer than expected to decide the case, the court of appeals has now put any further proceedings on a very fast track. It ruled that the mandate will issue in only six days, on February 12, unless Trump seeks a stay in the U.S. Supreme Court. (You’ll probably be hearing a lot about “the mandate issuing” - that simply means that the appeal is considered resolved and the case can return to the trial judge for further proceedings. This case was stayed pending appeal, so when the mandate issues that means Judge Chutkan has the green light to start it up again and get the case to trial.)
The court of appeals did a couple of important things here. First, the mandate typically does not issue for 30 days, but the panel granted Jack Smith’s request to drastically shorten that deadline. Second, the court ordered that if Trump seeks a rehearing from the same three-judge panel or a rehearing en banc by the entire court, that will not stop the mandate from issuing.
Seeking a panel rehearing or rehearing en banc would have been another way for Trump to seek to delay the case. But now, if he does that, the case will still go back to the trial court and move forward while the court of appeals considers his requests. The court’s order thus removes one important potential source of delay.
I expect Trump will not even bother seeking a rehearing or en banc review. There is no reason to believe the full court would agree to consider the case, given that it was a consensus opinion with no concurring or dissenting views. The court’s order that seeking such review would not stay the mandate is a pretty clear signal that en banc review would not be granted. Most important for Trump’s purposes, seeking that review would not delay the case and so would not help him avoid trial.
What Will the Supreme Court Do?
The only way for Trump to prevent the case from returning to judge Chutkan and moving forward immediately is for him to seek a stay in the Supreme Court by February 12. He will certainly do that. Once he does, the mandate will not issue pending the Supreme Court’s decision on the request for a stay.
The request for a stay is different from his actual appeal, or petition for certiorari. The stay motion just asks the court to keep the case on hold pending the filing and resolution of his petition for certiorari, on whatever schedule the Supreme Court sets. Although it only takes four votes from the justices to grant certiorari, it takes five to grant a stay.
Once Trump asks for a stay, hopefully the Supreme Court would act fairly quickly on that request, perhaps within a week or two. If they deny the stay, Trump can still seek certiorari, but while he did that the mandate would issue and the case could proceed to get ready for trial. It’s also possible for them to treat the stay request as a petition for certiorari and just decide whether to grant or deny review.
Recall that earlier Jack Smith asked the Supreme Court to leapfrog over the court of appeals and grant certiorari immediately, and they declined. That’s no guarantee that they will not want to grant certiorari now, but it could be a sign they are leaning that way.
And of course the Supreme Court already has one very hot potato in its lap, with oral arguments coming up this Thursday on the Colorado decision to kick Trump off the ballot for engaging in an insurrection. It may be more than happy to take a pass on this one and let the solid D.C. Circuit opinion serve as the last word.
Even if the Court were to take the case, I think there is almost zero chance it would reverse and hold that Trump has immunity. The only reason for the Justices to step in would be if they believe the Supreme Court really needs to weigh in on these unprecedented constitutional questions. I don’t know what the odds are of that. Overall I’m cautiously optimistic that they will not grant a stay and ultimately will not take the case.
The Unity of the D.C. Circuit Decision
I can’t overstate the importance of the fact that this was a unanimous, per curiam decision. There are no dissenting opinions and no concurrences that offer different reasoning or suggest divisions among the judges. It represents the collective views of all three judges in a unified decision. And it’s a solid, compelling rejection of Trump’s claims that he is above the law.
That puts the case in the best possible position when it comes to further appeals. When there is a strong decision with no division among the individual judges and no division among different courts of appeal, the Supreme Court is much less likely to feel that it needs to get involved.
Once again, the only reason for the Supreme Court to take the case will be if it thinks it needs to have the final word on these novel constitutional claims. If that’s their view, there’s nothing Smith or the court of appeals could have done. But short of that, this unified decision is the best possible outcome for the prosecution as it seeks to avoid further appellate delays and get the case to trial.
What Took So Long? - Not
There was a lot of hand-wringing about the amount of time the court was taking to decide the case. Some prominent legal talking heads on cable went so far as to say they were at full “freak out stage” over the delay. This panic was way overblown - four weeks is still very fast for a complex case involving novel constitutional questions. I and most others did expect the court to move a little faster, but this was still a very prompt decision on a complicated and high-profile matter where it was important to be as thorough and strong as possible.
As I discussed at the time, the oral arguments suggested the judges may have had some real differences of opinion over various legal issues, even if they ultimately agreed Trump should lose.
It appears the judges took the time to hammer out any disagreements so they could present a unified decision that will increase the chances the Supreme Court doesn’t even take the case. That was well worth the wait.
Trump’s Legal Claims Rejected
Let’s move now to the substance of the court’s decision.
The Question of Jurisdiction
You might recall from my post on the oral arguments that a kind of sleeper issue had been injected into the case by an amicus brief arguing the court did not have jurisdiction to consider Trump’s appeal at this stage. Both Trump and Jack Smith agreed that the rejection of Trump’s immunity claims gave him a right to an interlocutory appeal, or appeal before trial. But a brief filed by a group called American Oversight argued that, based on a Supreme Court case called Midland Asphalt, Trump was not entitled to an interlocutory appeal because the immunity he was claiming is not explicitly spelled out in the Constitution.
At oral argument, Judge Childs in particular seemed quite focused on the jurisdiction question. There was a lot of speculation that this might be one reason the decision was taking longer than expected. And the court devoted about ten pages of its opinion to discussing that issue, even though neither side had raised it. (Even if neither party challenges it, a court always has an obligation to consider its own jurisdiction.)
In the end, all three judges agreed that Midland Asphalt did not control. Because Trump is claiming that separation of powers and double jeopardy principles entitle him not to be tried at all, the court concluded his immunity claims fall comfortably within the category of cases that justify an interlocutory appeal, even in the absence of an express constitutional grant of immunity.
The court then turned to the constitutional arguments Trump made for immunity from prosecution:
1. Separation of Powers
Trump first argued that under the Constitution’s separation of powers, federal courts lack jurisdiction to review the official acts of a president. The court said it was true that for certain discretionary acts assigned to the president by the Constitution, the president is answerable only to politics and his own conscience. But Supreme Court decisions have always made clear that courts may review a president’s actions — even “official” ones — when they allegedly violate federal law. To hold otherwise would give a president the ability to make both Congress and the courts powerless. It would place the president above the law.
The court reviewed a long line of Supreme Court decisions holding that a president’s actions may be reviewed by the courts if they are alleged to violate the law. That is true for both civil and criminal matters:
The separation of powers doctrine . . . necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.
The court noted that its conclusion was bolstered by decisions finding that judges and members of Congress are subject to criminal prosecution for official acts that violate the law. Separation of powers dictates that what is true for the judicial and legislative branches must also be true for the executive.
The court concluded:
We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine . . . . The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.
2. Constitutional Policy Considerations
Even though it had determined the separation of powers did not deprive the courts of the jurisdiction to hear the case, the court said it still was required to consider whether policy considerations based on our constitutional structure and history justify criminal immunity for a former president. The court concluded the answer is no.
Trump had argued (and still argues) that presidential immunity is required because without it presidents will be chilled in the exercise of their official powers. He claimed that presidents will hesitate to act boldly and decisively when required, based on a fear of future criminal prosecution. He also argued that if immunity is denied it will open the floodgates and every future president routinely will be prosecuted by his or her successor.
The court said there was little to suggest that presidents will be cowed by fear of future criminal liability. It noted that at least since the Nixon era, sitting presidents have assumed that they were subject to potential criminal liability after they leave office. Ford granted Nixon a pardon, which would have been unnecessary if prosecution were impossible. Clinton agreed to pay a fine and have his law license suspended in exchange for a promise from an independent counsel not to indict him. The court also pointed out that during Trump’s 2021 impeachment trial, his own attorney argued that the appropriate remedy was not impeachment but the criminal process, “to which no former officeholder is immune.” There is no evidence, the court said, that this knowledge of potential prosecution has had any chilling effect.
The court also noted that rather than causing a president to fear taking appropriate actions, the prospect of criminal prosecution could have the positive effect of deterring abuses of power and criminal behavior. It quoted with approval one of my favorite lines from Judge Chutkan’s opinion: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”
The court also rejected the “floodgates” argument, that in the absence of immunity every president will routinely end up being prosecuted. It noted that this claim was undercut by the very fact that Trump is the first former president ever to face indictment. It also pointed to safeguards against frivolous or vindictive prosecutions, including Justice Department standards, ethical obligations of prosecutors, the requirement of a grand jury indictment, and judicial review of any charges.
Overall, the court said, the risk of presidents being subject to meritless prosecutions is slight. And weighed against that is the profound public interest in the rule of law and enforcement of the criminal laws. The court noted that the president has the constitutional obligation to take care that the law are faithfully executed, and said: “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 court also observed that Trump’s alleged conduct threatened the article II interests in a free and fair election, a peaceful transfer of power, and in a president serving only a four-year term.
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.
. . .
We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.
3. Impeachment Judgment Clause/Double Jeopardy
Trump’s final argument was based on the impeachment judgment clause and double jeopardy. This was the weakest of his claims, and the court made short work of it.
The impeachment judgment clause provides that the penalty for impeachment is only removal from office, but that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump argued that the reference to the party “convicted” being subject to prosecution meant that if an official was impeached but not convicted, as he was, then that official could not later be prosecuted.
Judge Chutkan ruled that this argument depends on a logical fallacy known as “denying the antecedent,” and the appeals court agreed: stating that if a president is convicted at impeachment he still can be prosecuted does not imply that if he is not convicted he cannot be prosecuted. The court explained why this argument was contrary to both the text and history of the impeachment clause. It also observed that this claim undermined Trump’s other arguments about absolute immunity, because he was agreeing the constitution provides a former president could be prosecuted for official acts — as long as he was impeached and convicted first.
Practically speaking, as the court observed, this argument would lead to absurd consequences. It would mean, for example, a president could engage in a crime spree in his final days of office with impunity, knowing there would not be time for an impeachment proceeding.
As for double jeopardy, the court held that it only bars successive criminal prosecutions. Impeachment is a political process, not a criminal one, and double jeopardy simply does not apply. Even assuming double jeopardy did apply, it would not bar prosecution here because the charges in Trump’s indictment are different from the charge for which he was indicted: incitement of an insurrection. When the charges in a subsequent case are different, there is no double jeopardy.
Next Up: Supreme Court
As I wrote above, this is a strong and compelling opinion. Coupled with the quick deadlines for further appeals set by the court, this is about the best outcome that Jack Smith could have hoped for.
Now we wait to see what the Supreme Court decides to do. We should know something in the next couple of weeks. Unless the Court drags its feet in a way that I think is unlikely, the chances are now very good that prior to the next presidential election a jury will decide whether Trump is guilty of criminally trying to overturn the last one.
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