A three-judge panel of the US Court of Appeals for the DC Circuit ruled Tuesday that former President Donald Trump does not have immunity from prosecution in his federal 2020 election interference case.
In a unanimous ruling, the court found that Trump is not entitled to “absolute” presidential immunity for actions he alleges he took in course of his official duties as president of the US. The court’s ruling affirmed District Judge Tanya Chutkan’s prior ruling, which found that “[f]ormer Presidents enjoy no special conditions on their federal criminal liability.”
Similarly, the DC Circuit found:
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.
In his appeal to the three-judge panel of the DC Circuit, Trump asserted three main arguments in support of his immunity claim:
- The doctrine of separation of powers prevents courts from reviewing official acts undertaken by the president;
- Functional policy considerations rooted in the separation of powers doctrine require immunity to prevent intrusion upon executive branch functions; and
- Former presidents may only be prosecuted if they are first impeached and convicted by Congress under the Impeachment Judgment Clause.
In their Tuesday ruling, however, the DC Circuit rejected all three grounds.
Regarding Trump’s first argument, the court found, “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.” The three-judge panel also raised the issue of separation of powers during the January 9 oral arguments, specifically as it related to the 1803 US Supreme Court case of Marbury v. Madison. In that landmark case, the court delineated two types of official acts: discretionary and ministerial. While discretionary actions are never reviewable by the courts (as they are best addressed through the political process), the court found that ministerial actions could be subject to review, since the duty to perform ministerial actions is imposed by law.
Since Trump claimed that he should be immunized because the actions at issue in the case were official acts, the panel pushed for Trump’s counsel to speak to the Marbury precedent. Ultimately, the court concluded in their decision that Trump’s actions—if they were to be considered official acts—were ministerial. The court reasoned that Trump was charged with acting in compliance with federal criminal law, and failed to do so. Therefore, the court found, “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
The court then turned to address Trump’s second argument, regarding policy concerns. The court described the two policy concerns at issue in this case as: (1) possible intrusion upon the authority and function of the executive branch, and (2) upholding the integrity of presidential elections and voters’ ability to democratically elect their president.
The court concluded, “[T]he 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.” While Trump asserted that such liability would curb future presidents’ willingness to undertake risky decisions, the court found that such liability provides a benefit to the government by “deter[ring] possible abuses of power and criminal behavior.” The court noted that, under the US Constitution, the president is subject to the Take Care Clause, which requires that the president faithfully execute the laws of the US. “It would be a striking paradox if the President…were the sole officer capable of defying those laws with impunity,” the court said. To do so would potentially undermine the “rights of individual citizens to vote and to have their votes count.”
In examining Trump’s third argument, the court found that the Impeachment Judgment Clause actually provided the “strongest evidence against [the] former President.” Whereas Trump argued that the clause means that a president can only be held accountable through congressional impeachment, the court instead found the language “explicitly preserves the option of criminal prosecution of an impeached official ‘according to Law.'”
The court dismissed Trump’s argument, stating that, “Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as ‘Treason, Bribery, or other high Crimes and Misdemeanors’) and, if thirty Senators are correct, crimes not discovered until after a President leaves office.” The court found such a reading of the clause to be fundamentally at odds with the framers’ goal of preventing a president from becoming a king.
The court also rejected Trump’s claim that the charges against him in this case amounted to double jeopardy. While Trump was previously tried and impeached in the House of Representatives for his role in the January 6, 2021 Capitol riot, the Senate did not convict him on the impeachment charges. Even if they had, the court found that such an impeachment does not bar any future prosecutions based on the same or similar facts. The court wrote:
Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.
The court will not officially hand down its mandate until February 12, giving Trump until then to appeal to the US Supreme Court and continue to pause the issuance of the mandate. Once the mandate is issued, jurisdiction returns to the district court—meaning the trial proceedings can continue. Since Trump launched his appeal of the issue, Chutkan issued a stay on any proceedings, pending a decision from the DC Circuit. Now that the DC Circuit has issued a decision, Trump is up against the clock. The DC Circuit noted that, while Trump is able to appeal for a full bench of the DC Circuit to hear the issue en banc, that form of appeal will not stop the clock on the issuance of the mandate. Only an appeal to the US Supreme Court—which is highly likely at this point—will extend the stay on trial court proceedings.
