THE DECISION
As everyone knows by now, the US Appeals Court DC Circuit denied Trump’s claim that the Justice Department cannot prosecute him for the crimes he committed as President. So let us parse the decision and understand why the Court decided that no American is above the law — even a President.
First the icing. The three-judge panel decided Per Curiam (unanimously) and they issued a single, 57-page, unified opinion. This consensus leaves no room for conservative media and Trump’s congressional arse-snoggers to promote some imaginary discord on the bench.
As for the meat of the matter, the Court showed its colors in the first paragraph of the opinion. They start by outlining how a presidential succession is supposed to work. Then, the judges dropped the hammer.
Although this sequence [presidential succession] is set by the Constitution, it did not proceed peacefully.
The opinion then outlines the case against the wannabe insurrectionist.
Indeed, from election day 2020 forward, the government alleges that President Trump denied that he had lost his bid for a second term and challenged the election results through litigation, pressure on state and federal officers, the organization of an alternate slate of electors and other means. His alleged interference in the constitutionally prescribed sequence culminated with a Washington, D.C., rally held on January 6, 2021.
The Judges then swatted away the conservative spin that the J6 riots were a tourist excursion by concerned and peaceful citizens.
The rally headlined by President Trump resulted in a march of thousands to the Capitol and the violent breach of the Capitol Building.
They then note that, consequently, prosecutors secured a four-count indictment against Trump. They outline the subsequent legal activity. And finally, they slam the door on Trump’s Hail Mary appeal.
Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. 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.
And there we have it — done and dusted, with a bow on it — all over by page 3. However, what was the rationale for their decision? The Court gives it in the ensuing 54 pages.
I. BACKGROUND
First, the Judges go into greater detail about how Trump tried to thwart the will of the voters and slit democracy’s throat. They offer a summation of the government case. And enumerate Trump and his co-conspirators’ dirty deeds.
- First, they “used knowingly false claims of election fraud” to attempt to persuade state legislators and election officials to change each state’s electoral votes
- Second, then-President Trump and his co-conspirators“organized fraudulent slates of electors in seven targeted states . . . attempting to mimic the procedures that the legitimate electors were supposed to follow.”
- Third, then-President Trump and his co-conspirators pressed officials at the Department of Justice “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.”
- Fourth, then-President Trump and his co-conspirators attempted to convince then-Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.”
- Fifth, and finally, from the January 6 rally, thousands of his supporters — “including individuals who had traveled to Washington and to the Capitol at [his] direction” — swarmed the United States Capitol, causing “violence and chaos”
They outline Trump’s attempt to avoid prosecution. And the District Court’s dismissal of his specious claims.
Former President Trump filed four motions to dismiss the Indictment, relying on: (1) presidential immunity; (2) constitutional provisions, including the Impeachment Judgment Clause and principles stemming from the Double Jeopardy Clause; (3) statutory grounds; and (4) allegations of selective and vindictive prosecution.
On December 1, 2023, the district court issued a written opinion denying the two motions that are based on presidential immunity and the two constitutional provisions.
II. JURISDICTION
Next, they explain why the DC Appeals Court has jurisdiction. It takes six pages. It is full of case law and its interpretation. It is boring. And I will take their word for it.
Circuit Precedent
Next, the Court explains the case precedents they are following (stare decisis). That takes three pages. And I have taken the same approach as I did in ‘Jurisdiction.’ (Note: If any lawyer or legal scholar has insight into this, I welcome it in the comments.)
III. EXECUTIVE IMMUNITY
Here, the Court picks up the pace. They start by telling Trump it is up to him to prove he has immunity.
For all immunity doctrines, “the burden is on the official claiming immunity to demonstrate his entitlement.”
They point out that presidential immunity in civil matters is broader than in criminal acts. However, Trump is arguing that the law should hold him to the civil standard, and he should be free to commit whatever crimes he wants to as President.
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.
They then sum up Trump’s case for his presidential ‘get out of jail free’ philosophy.
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.
Finally, they reject Trump’s nonsense with a judicial ‘nice try.’
Our analysis is “guided by the Constitution, federal statutes, and history,” as well as “concerns of public policy.” 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.
Next, they outline in greater detail why they told Trump to jog on. They tackle it issue by issue.
A. SEPARATION OF POWERS DOCTRINE
The opinion starts by acknowledging that the Constitution does demand the three branches of government have separate lanes — BUT:
“It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.”
Adding: (separation of powers doctrine cannot “sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances”)
It goes on to say that Trump misunderstands America’s legal history.
Former President Trump misreads Marbury and its progeny. 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.
In the following nine pages the opinion explains, with references to case law and legal opinions, why Trump is wrong.
B. FUNCTIONAL POLICY CONSIDERATIONS
The Court then says that, while the law is clear that the separation of powers doctrine does not grant presidential immunity, the Court cannot ignore how people have historically acted (ie public policy).
Even though it is proper under Marbury and its progeny for an Article III court to hear criminal charges brought against a former President, we “necessarily” must “weigh concerns of public policy, especially as illuminated by our history and the structure of our government,” including our “constitutional heritage and structure.”
Here, the Judges make a sea change. Whereas, so far, the opinion has presented general principles, the Court now turns its attention to the specifics of Trump’s crimes.
We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term
With that in mind, they explain that holding criminal presidents to account is a more important goal than ensuring presidents are spared gadflies.
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.
Next, they point out that the presidency is bigger than one man, no matter how much he may pout.
Second, we examine the additional interests raised by the nature of the charges in the Indictment: The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President. We find these interests compel the conclusion that former President Trump is not immune from prosecution under the Indictment.
1. CATEGORICAL IMMUNITY DEFENSE
The Court then dismisses Trump’s claim that opening the door to allowing criminal prosecution of Presidents will hamstring their ability to do their job.
Former President Trump argues that criminal liability for former Presidents risks chilling Presidential action while in office and opening the floodgates to meritless and harassing prosecution. These risks do not overcome “the public interest in fair and accurate judicial proceedings,” which “is at its height in the criminal setting.”
In the next five pages, the Court offers case law, etc. to explain its opinion.
2. IMMUNITY FROM THE INDICTMENT’S CHARGES
Next, the Court addresses Trump’s claim that he was merely doing his (the President’s) job in ensuring fair elections under the ‘Take Care Clause’ to faithfully enforce the laws. The Court rejected that nonsense by pointing out he was doing the opposite.
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. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.
In the next three pages, the Court explains its reasoning.
C. THE IMPEACHMENT JUDGMENT CLAUSE
Next, the opinion rejects Trump’s claim that he cannot be criminally prosecuted because the Senate had found him ‘not guilty’ in his second impeachment trial. In doing so, they point out that Trump is 180º wrong (again) in his constitutional interpretation.
The strongest evidence against former President Trump’s claim of immunity is found in the words of the Constitution. The Impeachment Judgment Clause provides that “[j]udgment 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.”
That language limits the consequences of impeachment to removal and disqualification from office, but explicitly preserves the option of criminal prosecution of an impeached official “according to Law.”
The Court's point is that while the Impeachment Judgement Clause limits the penalties for a ‘guilty’ impeachment verdict, it does not preclude prosecuting a President not impeached. Just in case there was any doubt, the Court added:
He asserts that the Impeachment Judgment Clause “presupposes” that a President is not criminally liable absent a conviction in the Senate. Other courts have rejected this “tortured” interpretation of the Impeachment Judgment Clause, which previously has been advanced to support claims of judicial immunity.
And:
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. Yet they chose not to include a similar provision granting immunity to the President.
The next nine pages flesh out the Court’s argument.
IV. DOUBLE JEOPARDY PRINCIPLES
The court wastes no time dismissing Trump’s ‘double jeopardy’ argument.
Former President Trump alternatively argues that the Impeachment Judgment Clause and “principles of double jeopardy” bar his prosecution because he was impeached by the House of Representatives for the same or closely related conduct but acquitted by the Senate. We disagree.
They offer a terse summation of their rationale:
The Clause simply does not speak to such matters. But the weight of historical authority indicates that the Framers intended for public officials to face ordinary criminal prosecution as well as impeachment.
A. IMPEACHMENT IS NOT “CRIMINAL”
The Court then gets to the nitty gritty of why they gutted Trump’s ‘double jeopardy’ silliness.
Under the Double Jeopardy Clause, a defendant is not “put in jeopardy of life or limb,” when faced with any penalty “that could, in common parlance, be described as punishment”; instead, double jeopardy guards only against “imposition of multiple criminal punishments for the same offense.” Although double jeopardy applies only to criminal punishments, impeachment imposes political punishments.
B. BLOCKBURGER TEST
The Court then argues that even if impeachment/criminal trial could be considered double jeopardy, Trump’s criminal prosecution would still be kosher.
Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached.
They then explain the legal authority for determining double jeopardy.
In determining whether two charges are the“same” for double-jeopardy purposes, courts apply “the same elements test” (also known as the “Blockburger test”)
And they conclude:
Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment.
The Court tells Trump to feck off
Which all leads to the opinion’s final sentence
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.
So ordered.
Now it will be up to the Supreme Court to put Trump's ‘presidential immunity’ balderdash six feet under.
