A federal appeals court panel today unanimously rejected Donald Trump's audacious claim that "absolute" presidential immunity bars his prosecution for attempting to stop Joe Biden from taking office after the 2020 election. That outcome is not surprising, given the skepticism that all three judges, including a Republican appointee, expressed during oral arguments in the case last month. But their reasoning is important to consider, especially because Trump is certain to seek Supreme Court review.
A federal indictment obtained by Special Counsel Jack Smith charges Trump with three conspiracy counts and one count of obstructing the congressional certification of Biden's victory. Those charges are based on his attempts to enlist state and federal officials in his efforts to reverse the election results, including his recruitment of "alternate" electors that he wanted legislators to recognize instead of Biden's slates. Trump argues that all of the conduct described in the indictment qualified as "official acts" for which a former president cannot be prosecuted unless they resulted in impeachment by the House and conviction by the Senate.
"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 D.C. Circuit says.
"But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."
Trump argued that the constitutional separation of powers should prevent his prosecution. To the contrary, the D.C. Circuit says, that principle requires that the case be allowed to proceed.
"At bottom," the D.C. Circuit says, "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."
Trump argued that federal courts "lack the power to review the President's official acts under the separation of powers doctrine." His lawyers relied heavily on the Supreme Court's 1803 decision in Marbury v. Madison, which declared that the acts of an executive official, "as an officer" carrying out "the will of the President," can "never be examinable by the courts."
Trump "misreads Marbury and its progeny," the appeals court says. "Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act."
Marbury drew a distinction between "discretionary" and "ministerial" acts. Regarding the first category, Chief Justice John Marshall said in the majority opinion, "the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience." In that situation, he said, "the subjects are political and the decision of the executive is conclusive," meaning it "can never be examinable by the courts."
But that is not true, Marshall added, "when the legislature proceeds to impose on [an executive official] other duties; when he is directed peremptorily to perform certain acts; when the rights of individuals are dependent on the performance of those acts." Then "he is so far the officer of the law, is amenable to the laws for his conduct, and cannot at his discretion, sport away the vested rights of others." In those circumstances, he is acting as a "ministerial officer compellable to do his duty, and if he refuses, is liable to indictment."
As the D.C. Circuit notes, subsequent Supreme Court decisions reinforced that distinction, showing that official presidential acts are "examinable by the courts" when they violate the Constitution or defy the will of Congress. In the 1952 case Youngstown Sheet & Tube Co. v. Sawyer, for example, the Court "exercised its cognizance over Presidential action to dramatic effect" by holding that "President Harry Truman's executive order seizing control of most of the country's steel mills exceeded his constitutional and statutory authority and was therefore invalid."
As the Supreme Court observed in 1882, "No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." That principle, Justice Brett Kavanaugh, a Trump appointee, noted in Trump v. Vance, a 2020 case involving a district attorney's access to Trump's financial records, "applies, of course, to a President."
In that case and others, the D.C. Circuit notes, "the Supreme Court has repeatedly affirmed the judiciary's power to direct appropriate process to the President himself." It has held that "the President does not enjoy absolute immunity from criminal subpoenas issued by state and federal prosecutors and may be compelled by the courts to respond." In short, the appeals court says, quoting Vance, "we have '200 years of precedent establishing that Presidents, and their official communications, are subject to judicial process, even when the President is under investigation.'"
Contrary to Trump's claim, "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 Congress's laws," the D.C. Circuit says. "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."
Trump also argued that "criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution." Those risks, the D.C. Circuit concludes, "do not overcome the public interest in fair and accurate judicial proceedings, which is at its height in the criminal setting."
If the chilling effect that worries Trump were significant, the appeals court suggests, it should already be apparent. "Past Presidents have understood themselves to be subject to impeachment and criminal liability," it notes. "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." Before he left office, "President Bill Clinton agreed to a five-year suspension of his law license and a $25,000 fine in exchange for Independent Counsel Robert Ray's agreement not to file criminal charges against him." And after Trump was impeached for "incitement of insurrection" in January 2021, his lawyers "argued that instead of post-Presidency impeachment, the appropriate vehicle for 'investigation, prosecution, and punishment' is 'the article III courts,' as '[w]e have a judicial process and an investigative process…to which no former office holder is immune.'"
As for the possibility of frivolous, politically motivated criminal charges, the D.C. Circuit notes that "prosecutors have ethical obligations not to initiate unfounded prosecutions," and "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." While those obligations and safeguards surely are not an iron-clad guarantee that partisans won't pursue dubious charges against former presidents, the appeals court thinks "the risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight."
In any case, the D.C. Circuit says, that danger must be weighed against the public's "fundamental interest in the enforcement of criminal laws." In this context, it says, "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."
If proven, the appeals court says, Trump's "alleged efforts to remain in power despite losing the 2020 election" were "an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role—the counting and certifying of the Electoral College votes—thereby undermining constitutionally established procedures and the will of the Congress….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 appeals court also rejected Trump's interpretation of the Impeachment Judgment Clause, which says "judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law." Trump reads that language to mean that a former president can be prosecuted for "official acts" only after he is removed by the Senate based on the same underlying conduct. If he is never impeached or if he is acquitted by the Senate, Trump says, he cannot be prosecuted.
That interpretation, the D.C. Circuit says, "rests on a logical fallacy: Stating that 'if the President is convicted, he can be prosecuted,' does not necessarily mean that 'if the President is not convicted, he cannot be prosecuted.'" And since "the Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause," it is implausible that they would obliquely allude to the immunity that Trump perceives. "This tortured interpretation of the Impeachment Judgment Clause," the appeals court concludes, is inconsistent with the historical evidence and with rulings that rejected it when it was "advanced to support claims of judicial immunity."
Suppose that Trump is right, and suppose it is also correct that the Senate has no authority to try a former president, as many Republicans maintained after Trump's second impeachment. As the appeals court notes, that would mean a former president could avoid prosecution for crimes discovered after he left office. Or he could simply resign after committing those crimes, thereby avoiding political and criminal accountability.
Since the Impeachment Judgment Clause applies not just to the president but also to "the Vice President and all other civil officers of the United States," that immunity would extend to them as well. Trump's interpretation therefore "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," the D.C. Circuit notes. "No court has previously imposed such an irrational 'impeachment first' constraint on the criminal prosecution of federal officials."
Finally, the appeals court rejected Trump's argument that trying him for the crimes alleged in the indictment would amount to double jeopardy in light of his Senate acquittal. The Fifth Amendment's Double Jeopardy Clause says "no person shall…be subject for the same offence to be twice put in jeopardy of life or limb," which "has been interpreted to prohibit 'imposition of multiple criminal punishments for the same offense.'" But a Senate trial is not a criminal proceeding, and the penalties that the Senate is authorized to impose—removal from office and disqualification from future office—are not criminal penalties.
Even if they were, the D.C. Circuit notes, Trump's federal prosecution involves crimes with elements different from the offense ("incitement of insurrection") alleged by his second impeachment. Under the Supreme Court's 1932 ruling in Blockburger v. United States, that means he is not being prosecuted for "the same offence."
In response to the D.C. Circuit's decision, Trump spokesman Steven Cheung reiterated the rejected claim that allowing the prosecution would have a paralyzing effect on the presidency. "If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party," he said. "Without complete immunity, a president of the United States would not be able to properly function."
Trump's trial, which had been scheduled to begin on March 4, was delayed because of his appeal to the D.C. Circuit. If Trump asks the full appeals court to rehear the case, The New York Times notes, "trial preparations could begin again" after Monday. But if he appeals directly to the Supreme Court, the case against him will remain on hold until the justices decide whether to review the D.C. Circuit's ruling. Depending on how long that process takes, the trial might still begin prior to this fall's presidential election. If that does not happen and Trump beats Biden in November, he could put a stop to the case by ordering the Justice Department to drop it or, in the event of a conviction, by pardoning himself.
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