Washington — A federal appeals court in Washington found former President Donald Trump is not entitled to broad immunity from federal prosecution, delivering a landmark decision that would allow the criminal case against the former president involving the 2020 presidential election to move forward if the ruling is upheld.
A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit said in its opinion Tuesday that it is upholding the decision from a lower court denying him absolute immunity from prosecution.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel, consisting of Judges Karen LeCraft Henderson, Michelle Childs and Florence Pan, wrote in its opinion. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Trump is expected to appeal the decision either to the full D.C. Circuit or the Supreme Court. The D.C. Circuit gave Trump until Feb. 12 to ask the nation’s highest court to pause its decision before it takes effect.
The D.C. Circuit’s Trump immunity decision
The three-judge panel first established in its 57-page opinion that it has jurisdiction to consider the merits of Trump’s appeal, addressing an issue that was raised in a friend-of-the-court brief filed by a liberal watchdog group in the case.
Turning to the issue of whether Trump is “categorically immune” from federal prosecution for any acts he took within the “outer perimeter” of his duties while in office, the judges rejected all three grounds advanced by Trump for establishing sweeping protection for former presidents.
“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,” the panel wrote, referencing Marbury v. Madison, the landmark decision that established the principle of judicial review. “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.”
Trump, the judges said, allegedly violated criminal laws, so those acts were not within the scope of his lawful discretion. They warned that accepting Trump’s legal argument would place those who are elected president beyond the reach of all three branches of government.
“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 panel found. “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
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The judges wrote that the allegations levied against the former president by the special counsel “were, if proven, an unprecedented assault on the structure of our government.” As such, they argue immunizing him or any president from legal action would “further … aggrandize the presidential office.”
“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,” the appeals court panel said. “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.”
Trump had warned that allowing a former president to be prosecuted risked chilling presidential action while in office and would invite harassing prosecution. But the judges determined that the interest in criminal accountability held by the public and executive branch outweighed those risks.
“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 panel wrote.
Trump’s immunity appeal
The D.C. Circuit moved swiftly to consider Trump’s appeal of a lower court decision that also rejected his claims of absolute immunity. The opinion from the three-judge panel came less than a month after they heard arguments in the case.
Smith had urged the D.C. Circuit to speed up its review of the district court’s order, warning that the trial that was originally scheduled to begin March 4 could not go forward before Trump’s appeal was resolved. Last week, the judge delayed the start of the trial to let the appeals process play out.
In August 2023, the former president was charged with four counts stemming from an alleged attempt to unlawfully overturn the results of the 2020 presidential election. Trump pleaded not guilty to all charges and has accused the Justice Department of pursuing a politically motivated prosecution targeting President Biden’s chief political rival. There is no evidence that Mr. Biden is involved in either of the special counsel’s two prosecutions of Trump.
Trump first raised his claim of presidential immunity in October, when he asked U.S. District Judge Tanya Chutkan, who is overseeing his criminal case in D.C., to dismiss the charges brought against him. The former president’s lawyers said he cannot be charged for actions he performed within the “outer perimeter” of his official duties, and argued that a president can only be prosecuted after he is impeached by the House and convicted by the Senate.
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Trump was impeached by the House on one article of incitement of insurrection following the Jan. 6, 2021, attack on the U.S. Capitol, but was then acquitted by the Senate.
The special counsel has said Trump’s alleged criminal actions — which involve pressuring the vice president to unilaterally reject state electoral votes and organizing false slates of presidential electors in key states he lost, according to the indictment — fell outside the scope of his official duties, given that they were taken in his capacity as a candidate for the White House and involved private attorneys and campaign staff.
Chutkan rejected Trump’s effort to toss out the indictment, finding he cannot be shielded from criminal prosecution after leaving office for alleged conduct that occurred while he was in the White House.
“Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote in her Dec. 1 decision.
Trump, Chutkan concluded, “may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
The D.C. Circuit’s hearing
The former president asked the D.C. Circuit to review Chutkan’s ruling, and the three-judge panel expressed skepticism toward his claim of broad immunity.
During oral arguments Jan. 9, which Trump attended, Pan, appointed by Mr. Biden, proposed a series of extreme hypothetical scenarios involving a president’s conduct to test the limits of Trump’s immunity argument.
“You’re saying a president could sell pardons, could sell military secrets, could order SEAL Team 6 to assassinate a political rival,” she told D. John Sauer, Trump’s lawyer, during one exchange, referring to the elite Navy unit.
Sauer had argued that impeachment and conviction are required before a president can be criminally prosecuted.
Henderson, appointed by President George H.W. Bush, said it was “paradoxical” to say Trump’s constitutional duty to take care that the laws are faithfully executed allows him to then violate the law.
Trump’s assertion of sweeping immunity raises the untested question of whether a former president can face charges for actions taken while in office. The Supreme Court held in a 1982 decision that presidents have absolute immunity from civil lawsuits arising out of conduct “within the ‘outer perimeter’ of his duties of office.” But the nation’s highest court has never decided whether that immunity extends to criminal prosecution after a president leaves office, and Trump is the first former president in the nation’s history to be indicted.
Smith asked the Supreme Court last month to leap-frog the appeals court and decide the immunity issue, but the high court declined to fast-track the case.
