Donald Trump is not legally immune from prosecution for acts committed during his presidency. That was the unanimous decision of a three-judge federal appeals court panel, which issued their ruling on Tuesday and to which the former president had turned after US District Judge Tanya Chutkan — who is presiding over the case against the Republican for trying to alter the results of the 2020 elections — also rejected Trump's argument that he cannot be held accountable for actions undertaken while in the White House. The former president, who is charged in this case with four counts, can still appeal to the full US Court of Appeals for the District of Columbia Circuit and, later, to the Supreme Court, which would have the last word.
“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 panel wrote in its 57-page ruling.
At the hearing before the Court of Appeals, which Trump voluntarily attended, his lawyer went so far as to argue that, unless Congress itself convicted him, the president should enjoy immunity from prosecution for all crimes committed while in office. Even for assassinating political rivals.
The judges believe that Trump's alleged efforts to remain in power despite losing the 2020 election would represent, if proven, an unprecedented assault on the structure of American government. “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 counted,” the ruling states.
There exists a relative legal consensus on the broad immunity of sitting presidents, but Trump tried to argue that such immunity could also be applied to former presidents, who are already out of office, for actions taken while they were in the White House, unless they have been impeached and convicted of a crime. Although Trump was impeached for inciting the insurrection at the US Capitol on Jan. 6, 2021, the Senate later acquitted him. Thus, his lawyers argue that he is being charged twice for the same act. No other US president — sitting or former — had ever been indicted before Trump, so there is no legal precedent in this regard.
The judges also rebutted Trump's argument that the lack of criminal immunity will subject future presidents to politically motivated prosecutions as soon as they leave office. Although Trump has promised a retaliatory presidency if he returns to the White House, the judges point out in their ruling that prosecutors “have ethical obligations not to initiate unfounded prosecutions.” Furthermore, they highlight that there are “additional safeguards in place to prevent baseless indictments, including the right to be charged by a grand jury upon a finding of probable cause.”
The ruling goes beyond simply rejecting the former president's immunity claim. In fact, in their legal reasoning, the judges go so far as to consider that Trump violated his presidential duty to safeguard and enforce the results of an election. “The President has a constitutionally mandated duty to 'take care that the laws be faithfully executed.' […] The President, of course, also has a duty […] to faithfully enforce the laws. This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters of him unsuccessfully pursued implemented his [presidential] duty, he is in error,” the document states. “Former President Trump's alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President. The public has a strong interest in the foundational principle of our government that the will of the people, as expressed in the Electoral College vote, determines who will serve as President,” the judges add.
Among its legal reasoning is a charge of depth, as the judges rule that Trump violated his duties to enforce the law in connection with the election. “This duty includes following the legal procedures for determining the election results and ensuring that executive power returns to the new president at the constitutionally designated time. To the extent that former President Trump contends that the 2020 post-election litigation that his campaign and his supporters unsuccessfully pursued implemented his duty of care [to follow the law], he is in error,” they sentence. “Former President Trump's alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing a new president. The public has a strong interest in our government's founding principle that the will of the people, as expressed in the Electoral College vote, determines who will serve as president,” they add.
The ruling notes that immunity for former President Trump would break the separation of powers system by placing him beyond the reach of all three. “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,” the judges point out.
The judges also look back to the Watergate scandal to reject Trump's claim of near-absolute immunity. “Recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency. President Gerald Ford issued a full pardon to former President Richard Nixon, which both former Presidents evidently believed was necessary to avoid Nixon's post-resignation indictment,” the ruling states.
Criminal case postponed
Even though Trump's appeal has been rejected, his lawyers have managed to gain time for the time being. Last Friday, Judge Chutkan indefinitely postponed the election interference criminal trial against the former president, which was scheduled for March 4. The Republican faces four criminal cases, for a total of 91 charges.
Back in December, Judge Chutkan had already refused to dismiss the case on immunity grounds in a harsh opinion that said the office of the president “does not confer a lifelong 'get-out-of-jail-free' pass.” Trump's legal team then appealed to the DC appeals court, which is now rejecting their appeal. Normally, an appeal does not paralyze a case altogether, but in this case it did, because what is at stake is the very essence of whether or not the former president can be indicted and tried.
Special counsel Jack Smith asked the Supreme Court to take up the matter and issue a speedy ruling, but the court declined to get involved — at least for now, letting the case make its way through the appeals court. Trump can still go to the full Court of Appeals and if he loses, take his case to the Supreme Court, which is expected to accept it. All of this would delay the process even more.
In this particular case, Smith has indicted him on four counts, relating to conspiracy to defraud the United States, efforts to obstruct the vote certification proceedings and conspiracy to violate civil rights. Trump maintains that the election was stolen from him, although he is not specifically
being charged for that lie. Rather, the indictment is based on the actions Trump took to alter the outcome of the 2020 election and to prevent the certification of Joe Biden's victory.
Trump is trying to delay his criminal cases, while Smith wants to get him before a jury before the November election. If Trump gets elected while the Washington case is pending, he could order the Justice Department to drop it or pardon himself.
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