Trump claim of presidential immunity turned down by federal appeals court in D.C. 

WASHINGTON — Former President Donald Trump can be prosecuted for charges he schemed to overturn the 2020 election, a three-judge panel of a federal appeals court ruled Tuesday, rejecting Trump’s argument he was immune from criminal prosecution for any alleged conduct during his presidential term.

In a unanimous opinion, the D.C. Circuit Court of Appeals panel denied Trump’s request to throw out the federal charges accusing him of lying to and encouraging supporters who turned violent on Jan. 6, 2021.

Trump and his attorneys argued the case should be dismissed because Trump was acting in his official capacity as president and that allowing a president to be sued would have disastrous consequences.

The court found those arguments were “unsupported by precedent, history or the text and structure of the Constitution.”

The stakes of the argument were exceptionally high, they wrote, because of the nature of the charges against Trump, which accuse the former president of attempting to subvert a core principle of U.S. democracy.

“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,” they wrote.

A Trump campaign spokesman said Tuesday the former president will appeal the ruling, possibly further delaying Trump’s trial while he continues his campaign as the front-runner for the Republican presidential nomination.

“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” campaign spokesman Steven Cheung said. He did not specify whether the appeal would be to the U.S. Supreme Court or the full circuit court.

The D.C. Circuit panel set a Monday deadline for a notice of appeal.

The panel comprised judges appointed by presidents of both parties.

Republican former President George H.W. Bush appointed Karen LeCraft Henderson. Florence Y. Pan and J. Michelle Childs were appointed by President Joe Biden, a Democrat who is likely to face Trump in the November presidential election.

Nixon pardon cited

The judges wrote that former presidents have long been understood to be subject to criminal prosecution.

President Gerald Ford pardoned his predecessor, Richard Nixon, which both understood as shielding Nixon from criminal indictment related to Watergate, the judges said.

It is also consistent with the Constitution, they wrote.

“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,” they wrote, quoting the Constitution.

They rejected Trump’s argument that allowing prosecutions would open the door to harassment of former presidents by an opposing political party, noting that has not happened to the 44 presidents who held office before Trump.

“We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation,” they wrote.

And in Trump’s case the nature of the accusations — which would constitute “an unprecedented assault on the structure of our government” — provide greater reason to allow criminal charges, the judges wrote.

A four-count indictment last year accused Trump of conspiring to overturn the 2020 presidential election.

The indictment accuses Trump of working with a group of co-conspirators to recruit false slates of electors, lying to the public about non-existent determinative election fraud and encouraging supporters to obstruct the election certification in a violent attack on the Capitol on Jan. 6, 2021.

Accepting Trump’s immunity argument would give presidents “carte blanche to violate the rights of individual citizens to vote and to have their votes count,”

Trump’s total immunity claim would place the president beyond the reach of all three branches of government, they wrote.

“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” they wrote.

Henderson, Pan and Childs previewed their skepticism of the executive immunity claims during early January oral arguments with Trump present in the Washington, D.C. courtroom.

Most notably during the tough questioning, Trump attorney D. John Sauer appeared to defend that presidents could be immune from criminal prosecution, even for ordering assassination of political rivals.

Tuesday’s appellate decision does not make any determination about the merits of the underlying federal charges accusing Trump of election interference.

Fred Wertheimer, the president of government accountability group Democracy 21, called the matter “the most important criminal case pending against former President Trump.”

Further appeals

The D.C. Circuit order set a Monday deadline for a notice of appeal to the U.S. Supreme Court. That notice would maintain the freeze on pretrial proceedings that has been on hold since Trump appealed a ruling on his immunity claims in December.

The court is not required to take the appeal, but exercising his appellate options will help Trump extend the case, potentially beyond Election Day. Trump and his legal team have not explicitly said it is part of their strategy to delay the case as long as possible, but have taken opportunities to draw out the proceedings.

Trump could also appeal to the full D.C. Circuit, but the court rarely grants such requests and the panel said Tuesday that simply asking for a rehearing would not delay a trial schedule.

The Supreme Court is also “unlikely” to hear an appeal, according to legal experts Norman L. Eisen, Matthew A. Seligman and Joshua Kolb, who wrote an outline of potential timelines in the case for Just Security, a site devoted to foreign policy, democracy and security analysis, that published Jan. 9.

Trump raised his immunity defense in the trial court, where he faces federal charges related to the 2021 attack on the Capitol, saying he could not be prosecuted for the actions alleged in the indictment because he was acting in his official capacity as president to counteract election fraud and because he’d already been acquitted in an impeachment trial.

U.S. District Judge Tanya S. Chutkan denied those claims, a decision Trump appealed to the D.C. Circuit. On Friday, Chutkan also officially postponed his trial, which had been set to begin March 4.

Hours before the three-judge panel issued its ruling, Trump posted in all capital letters on his online platform, Truth Social, that “IF IMMUNITY IS NOT GRANTED TO A PRESIDENT, EVERY PRESIDENT THAT 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!” he wrote.

Reaction rolls out

Several anti-Trump groups celebrated the ruling Tuesday, while Republicans on Capitol Hill launched a new effort to defend the former president through a House resolution.

The open records watchdog group American Oversight, which filed an amicus brief in the case, released a statement praising that appellate judges had “resoundingly rejected (Trump’s) claim that a president can commit crimes with impunity and avoid prosecution unless Congress impeaches and convicts him first.”

“We appreciate the Court’s careful consideration of our argument that Trump’s appeal was premature. By addressing the argument fully, the Court has removed the risk that this issue might be raised for the first time in any subsequent appeals, including to the Supreme Court, causing even more delay. Today’s important ruling affirms a core principle of our democracy — no one is above the law,” continued the statement from Heather Sawyer, American Oversight’s executive director.

Wertheimer noted Trump has throughout his career employed delay tactics in court proceedings and that “his efforts in this case are part of his oft-used strategy.”

“Trump’s goal is to get this criminal trial postponed until after the 2024 presidential election, at which time, if he wins the election, he can order his new Attorney General to drop the case,” he wrote.

He urged the Supreme Court to quickly dispose of a further appeal.

The Defend Democracy Project, an advocacy group focused on election integrity, said the appeals court ruling “upheld  the Constitution and common sense. Trump can and will be tried on criminal charges.”

“A core principle of American democracy is that the law applies equally to everyone, even a president. Anyone who attempts to take away our freedom to choose our own leaders must be held accountable,” read the organization’s statement issued after the ruling.

During a previously planned press conference Tuesday to announce a resolution absolving Trump from any action on Jan. 6, 2021, far-right House Republicans decried any scrutiny of the former president.

Lauren Boebert of Colorado said the several pending criminal cases against Trump amount to a “witch hunt.”

“It’s absolutely unprecedented, and the woke mob, the fake news and the leftist government officials who are engaging in this extortion should be downright ashamed of themselves. All of the bogus cases against President Trump are, plain and simple, election interference (in the 2024 election),” said Boebert, who signed onto the resolution led by Florida Republican Matt Gaetz.

Trump also faces criminal charges in three other cases.

State election interference charges in Georgia make similar accusations as the federal indictment. State charges in New York accuse him of falsifying business records by making unsanctioned hush money payments from campaign accounts. And a federal grand jury in Florida accused him of mishandling classified documents.

None of the cases have reached the trial phase, while Trump continues to build momentum toward a third Republican nomination for president.