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Trump’s claim of presidential immunity rejected by D.C. appellate court

Former President Trump pictured from the shoulders up
A federal appellate court panel has ruled that Donald Trump, pictured during his presidency, no longer has “any executive immunity that may have protected him while he served as president.”
(Evan Vucci / Associated Press)
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A District of Columbia appellate court panel on Tuesday unanimously rejected former President Trump’s claim that he is immune from prosecution on criminal charges that he plotted to overturn the 2020 election results.

“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,” the three-judge panel wrote.

In a 57-page opinion, the D.C. circuit court systematically tore through the arguments presented by Donald Trump’s legal team.

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“At bottom, Former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches,” the opinion states. “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.”

It continues: “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

The judges also said that the gravity of the charges brought against Trump weighed in their decision, considering the people’s interest in elections as a check on presidential power.

“To immunize former President Trump’s actions would ‘further ... aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress,’” they wrote, citing Justice Robert H. Jackson’s concurring opinion in a 1952 ruling checking President Truman’s power.

Trump is charged with four federal felonies including conspiring to obstruct the official certification of Joe Biden’s election victory and seeking to defraud Americans of their rightful votes.

Steven Cheung, Trump campaign spokesman, said in a written statement that Trump would appeal to the Supreme Court.

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“Without complete immunity, a president of the United States would not be able to properly function!” Cheung wrote. “Prosecuting a president for official acts violates the Constitution and threatens the bedrock of our republic.”

In December, the high court refused an emergency appeal by Justice Department special counsel Jack Smith to take the case rather than wait for the appellate court to weigh in.

Now that the U.S. Court of Appeals for the D.C. Circuit has ruled, the Supreme Court could agree to resolve the constitutional question raised by Trump’s claims, or it could let the appellate ruling stand, which would amount to a defeat for Trump.

The former president had signaled plans to use presidential immunity as a defense in all four of his criminal cases.

Whether Trump faces his first criminal trial this spring may turn on how fast the Supreme Court acts.

The D.C. judges said that they would keep the criminal prosecution on hold temporarily, giving Trump’s lawyers until Monday to ask the high court to intervene, and that the hold would continue “pending the Supreme Court’s final disposition” of that emergency request.

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If the Supreme Court justices turn down Trump’s appeal, the case could be rescheduled for trial in federal court by late spring. But if the justices delay a decision on whether to take the case, or agree to review the D.C. court ruling, Trump’s trial could be put off at least until the fall.

Washington lawyer Neal Katyal said he doubted the Supreme Court would shield Trump from a trial.

“Trump’s argument is so weak and the Court of Appeals decision so thorough and well done, I can see the court voting not to hear it,” Katyal said on social media shortly after the decision.

Trump’s lawyers had argued that criminal charges should be thrown out on the grounds that a former president cannot be charged with a crime for “official acts” while in the White House.

But Tuesday’s opinion rejected that premise, saying “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.”

Trump and his legal team had argued that a president cannot make necessary decisions for the country if they are worried about facing potential criminal charges when they leave office.

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“Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end,” Trump said in an all-capital-letters social media post Jan. 20. “Even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad.”

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Tuesday’s opinion also dismisses that argument, saying that it does not live up to historical precedent and that other former presidents have publicly recognized they were not wholly immune from criminal prosecution for official acts.

Trump “acknowledges that this is the first time since the Founding that a former president has been federally indicted. Weighing these factors, we conclude that the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears slight,” it states.

The panel also dismissed the argument that impeachment is the proper punishment for a president.

Trump was impeached by the House twice, including for his alleged efforts to remain in office, but he was not convicted by the Senate.

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Trump’s claims “would leave a president free to commit all manner of crimes with impunity, so long as he is not impeached and convicted,” the judges said. “No court has previously imposed such an irrational ‘impeachment first’ constraint on the criminal prosecution of federal officials.”

Smith, who is prosecuting Trump, argued that criminal charges can be brought once a president leaves office, particularly for actions that don’t relate to his official duties. That includes, Smith said, efforts to overturn election results.

The special counsel said it would be dangerous for the courts to rule that a president or former president has total immunity from criminal charges.

The three-member D.C. panel included Judge Karen Henderson, an appointee of GOP President George H.W. Bush, and Judges J. Michelle Childs and Florence Pan, both appointed by Biden, a Democrat.

The Supreme Court will hear arguments Thursday on the related issue of whether Trump can be disqualified from running for president again under the 14th Amendment on allegations that he “engaged in insurrection” after losing the 2020 election.

Times staff writers David G. Savage and David Lauter contributed to this report.

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