On Tuesday, a federal appeals court ruled that Donald Trump is not immune to prosecution for his attempts to overturn the 2020 election. The 57-page ruling takes apart the claims that Trump made one by one, thoroughly dismembering his arguments to conclude that Trump’s declaration of “categorical immunity from criminal liability” is “unsupported by precedent, history or the text and structure of the Constitution.”
As The New York Times notes, the unanimous ruling is unlikely to be the last word on executive immunity, but the appeals court “handed Mr. Trump a significant defeat.” Not least of all in determining that, as far as the court is concerned, it’s very much Mr. Trump.
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.
There’s nothing about this ruling that is going to make Trump happy.
Mother Jones has sifted the ruling for some of the best lines, and that definitive stripping away of Trump’s former title is just one of them. There’s also the section where the court notes that during his second impeachment trial, Trump’s legal representative tried to have it the other way. In 2021, they argued that Trump shouldn’t be impeached because he was out of office and the proper place to deal with this was in court by writing “[w]e have a judicial process” and “an investigative process ... to which no former officeholder is immune.’”
The judges also noted that Trump wasn’t alone in making this argument: Thirty senators, including Senate Minority Leader Mitch McConnell, also argued that once he left office, Trump was no longer the proper subject of impeachment and was subject to the courts.
But the portion of the ruling most likely to get wide play is one in which the judges point out the pure silliness of what Trump is suggesting.
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.
This is connected to what others have described as the center of the judges' reasoning: Giving the president the kind of immunity Trump seeks would “collapse our system of separated powers by placing the President beyond the reach of all three Branches.” It would immediately elevate the president to an all-powerful dictator, unbounded by anything Congress or the courts might do.
In addition to declaring that he should have absolute immunity, Trump’s appeal included a backup claim that because he had been impeached and Republicans had voted to save him in the Senate, taking him to court on the same issues would be “double jeopardy.” But the court also swiftly dealt with that assertion, making it clear that impeachment and indictment were unrelated.
The ruling gives Trump until Feb. 12 to file an appeal with the Supreme Court. Otherwise, the district court can once again move forward on charges of election interference. The ruling is so definitive that numerous experts have suggested the Supreme Court might not take up an appeal from Trump.
However, some are suggesting that because special counsel Jack Smith originally tried to convince the Supreme Court to hear the case before it was sent back to the appeals court, this could be an opening for Trump’s attorneys to press the court to take up the case.
Trump has responded to the ruling with numerous repetitions of his assertion that presidents must have a level of immunity that no president has ever enjoyed in real life.
When Trump brought this appeal, legal experts agreed that the issues around presidential immunity were novel and that whatever the court determined it would be making new law. Now a three-judge panel for the United States Court of Appeals has filled in those gaps, and their ruling seems so definitive that they may be the last word on this topic.
Except for Trump. He’ll keep on demanding absolute immunity. Even if he’s doing it from a prison cell.
Campaign Action
