The U.S. Court of Appeals for the District of Columbia Circuit ruled Tuesday that former President Donald Trump cannot assert immunity from prosecution in his ongoing criminal proceeding related to his comments on the results of the 2020 presidential election.
Trump, who has been indicted by Special Counsel Jack Smith on charges of alleged criminal conduct related to his seeking to overturn the results of 2020’s election, had sought to assert constitutional immunity from prosecution, arguing that it is incidental to his status as a former president. On Tuesday, a three-judge panel of the D.C. Circuit unanimously rejected that claim. (RELATED: Jack Smith Argues Granting Trump’s ‘Dangerous’ Immunity Claims Could Greenlight Presidential ‘Murder,’ Bribery)
“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,” wrote the court in a per curiam opinion, where the author is not identified. “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
Read the court’s judgment here:
United States v. Trump, No. 23-3228 (D.C. Cir., Feb. 6, 2024) by Daily Caller News Foundation on Scribd
“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 court ruled, addressing the notion that post-presidential immunity is grounded in a president’s powers under Article II of the U.S. Constitution. “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.”
Apart from addressing the constitutional issues raised by Trump’s attorneys, the appellate court also ruled that policy considerations merited allowing Trump’s prosecution. “The federal prosecution of a former President fits the case ‘[w]hen judicial action is needed to serve broad public interests’ in order to ‘vindicate the public interest in an ongoing criminal prosecution’,” the court wrote.
The live-streamed oral arguments in the case had previously attracted attention after Trump’s attorney, D. John Sauer, appeared to argue that a former president would have immunity from prosecution even if they ordered the assassination of a political rival. Sauer was responding to a hypothetical claim posed by a judge to argue that former presidents had absolute immunity unless they were impeached by the House of Representatives as well as convicted and removed by the Senate for the actions upon which they were indicted.
The judges hearing the case were Karen Henderson, an appointee of George H.W. Bush, as well as J. Michelle Childs and Florence Pan, both of whom were appointees of President Joe Biden. Trump is the leading candidate for the Republican presidential nomination in 2024 and, if nominated, will likely challenge Biden, the leading candidate for the Democratic nomination, in the general election.
Should Trump contest the appellate court’s ruling, the next measure would be to petition the D.C. Circuit for a rehearing of the case en banc, whereby all judges of the 11-member court would review his appeal. However, Trump may also petition the Supreme Court for a writ of certiorari to elevate the case to them, which, if granted, would render a final decision on his claim of immunity.
Either way, I expect the Court to rule on the stay application either late next week or early the week of February 19. So we should know a *lot* more about the timing of the next steps sometime in the next two weeks.
— Steve Vladeck (@steve_vladeck) February 6, 2024
“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,” the court concluded. “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
Trump’s spokesperson, Steven Cheung, offered a statement on the decision to the Daily Caller News Foundation.
“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! Deranged Jack Smith’s prosecution of President Trump for his Presidential, official acts is unconstitutional under the doctrine of Presidential Immunity and the Separation of Powers. Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic. President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Cheung wrote.
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