D.C. Circuit Court Unanimously Holds Trump Not Entitled to Immunity from Criminal Prosecution
Trump, Like All Citizens, Is Not Above The Law
Here are some excerpts from the Unanimous decision of the D.C. Circuit Court of Appeals that Trump is not entitled to any immunity from criminal prosecution for his deeds in seeking to overturn the votes of the American people who voted to have Joe Biden succeed Trump as President. Trump’s attempted coup may subject him to criminal prosecution as all of his claims of immunity from criminal conviction were solidly rejected by the Court.
The Court rejected Trump’s arguments on separation of powers grounds, on the Impeachment Judgment Clause and on Double Jeopardy: all of which were farcical.
The Charges Against Trump:
Former President Trump did not concede the 2020 election and, in the ensuing months, he and his supporters made numerous attempts to challenge the results. Many of their attempts were allegedly criminal.1 A District of Columbia federal grand jury indicted former President Trump on four criminal counts arising from the steps he allegedly took to change the outcome of the election: (1) conspiracy to defraud the United States by ove1tuming the election results, in violation of 18 U.S.C. § 371; (2) conspiracy to obstruct an official proceeding - i.e., the Congress's certification of the electoral vote - in violation of 18 U.S.C. § 1512(k)(3) obstruction of, and attempt to obstruct, the certification of the electoral vote, in violation of 18 U.S.C. §§ 1512(c)(2); and (4)conspiracy against the rights of one or more persons to vote and to have their votes counted, in violation of 18 U.S.C. § 241
The Indictment alleges that former President Trump understood that he had lost the election and that the election results were legitimate but that he nevertheless was "determined to remain in power." Indictment 2.He then conspired with others to cast doubt on the election's outcome and contrived to have himself declared the winner.
The Court noted the broad expanse of Trump’s criminal immunity claims:
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.
The Court summarized Trump’s purported bases for claiming immunity:
He advances three grounds for establishing this expansive immunity for former Presidents:
(1) Article III courts lack the power to review the President's official acts under the separation of powers doctrine; (2) functional policy considerations rooted in the separation of powers require immunity to avoid intruding on Executive Branch functions; and (3) the Impeachment Judgment Clause does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him.
The Court rejected all three of Trump’s claims of immunity:
Relying on these sources, we reject all three potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular.
The Court reviewed Trump’s separation of powers claim that gave him immunity and cited the famous case of Marbury v. Madison:
The separation of powers doctrine, as expounded in Marbury and its progeny, 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. Although certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is "amenable to the laws for his conduct" and "cannot at his discretion" violate them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former President Trump's actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment.
The Court rejected Trump’s arguments that separation of powers principles provided him immunity from criminal prosecution:
We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. 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." Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.
The Court discussed the Impeachment Judgment Clause of the Constitution and concluded:
Even former President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction. E.g., Oral Arg. Tr. 13:25- 14:9. We presume that every President is aware of the Impeachment Judgment Clause and knows that he is "liable and subject to Indictment, Trial, Judgment and Punishment, according to Law," at least after impeachment and conviction. U.S. CONST. art. I,§ 3, cl. 7.
The Court then quotes from United States v. Nixon:
As the Nixon Court explained, wholly immunizing the President from the criminal justice process would disturb "the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions" to such an extent that it would undermine the separation of powers by "plainly conflicting with the function of the courts under Art. 111." Nixon, 418 U.S. at 707.
The Court then cites the obligation of presidents to see that the law is faithfully executed:
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 concludes that functional policy considerations do not require presidential criminal immunity:
We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution.
The Court commented on the Electoral Count Act:
The Indictment alleges that the asserted "official" actions at issue here were undertaken by former President Trump in furtherance of a conspiracy to unlawfully overstay his term as President and to displace his duly elected successor. See Indictment Pa. 2, l. That alleged conduct violated the constitutionally established design for determining the results of the Presidential election as well as the Electoral Count Act of 1887, neither of which establishes a role for the President in counting and certifying the Electoral College votes.
The Court discussed Trump’s arguments under the Take Care Clause which says that the president must take care that the laws are faithfully executed:
The President, of course, also has a duty under the Take Care Clause 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 unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump's alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.
The Court comments on Trump’s unprecedented assault on the foundational structure of our government:
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 in the counting and certifying of the Electoral College votes - thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump's actions would "further ... aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress."
The Court rejects Trump’s claims that he has unbounded authority to commit crimes and ignore the law:
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.
The Court concludes that there is no functional reason to immunize the president as Trump claims:
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. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment.
The Court commented on the Impeachment Judgment Clause:
To begin, former President Trump's reliance on a negative implication is an immediate red flag: The Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause. See U.S. CONST. art. I, § 6, cl. l. Yet they chose not to include a similar provision granting immunity to the President.
The Court commented on Hamilton’s discussion of the Impeachment Judgment Clause and rejected Trump’s interpretation:
It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.
The Court comments on Trump’s implausible reading of the Impeachment Judgment Clause:
Finally, the practical consequences of former President Trump's interpretation demonstrate its implausibility. The Impeachment Judgment Clause applies not just to Presidents but also to the "Vice President and all civil Officers of the United States." U.S. CONST. art. II, § 4. Thus, his reading would prohibit the Executive Branch from prosecuting current and former civil officers for crimes committed while in office, unless the Congress first impeached and convicted them. No court has previously imposed such an irrational "impeachment first" constraint on the criminal prosecution of federal officials.
The Court explains why there is no Double Jeopardy rule to bar Trump’s prosecution:
Under precedent interpreting the Double Jeopardy Clause, former President Trump's impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.
The Court comments on the political nature of impeachment as differing from judicial criminal prosecution:
As a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence. See The Federalist No. 65, at 319 (In an impeachment proceeding, "there will always be the greatest danger that the decision will be regulated more by the comparative strength of parties, than by the real demonstrations of innocence or guilt.")
The Court addresses the difference between impeachment and criminal proceedings:
In light of the very different procedures and purposes associated with impeachment proceedings as compared to criminal proceedings, former President Trump's reliance on the Double Jeopardy Clause is misplaced. Impeachment is not a criminal process and cannot result in criminal punishment.
The Court affirmed Judge Chutkan’s denial of Trump’s Motions seeking immunity from prosecution:
We have balanced former President Trump's asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that "[c]oncerns 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. See Fitzgerald, 457 U.S. at 747-48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly "official" action that he took as President - a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by "double jeopardy principles." Accordingly, the order of the district court is AFFIRMED.16
Will Trump now delay filing a Petition for Certiorari in the Supreme Court in order to further delay his criminal trial arising out of the January 6 Insurrection? Will the Special Counsel seek expedited review in the Supreme Court even if Trump delays his appeal? Will Judge Chutkan enter a new scheduling order for Trump’s trial?