D21 President Fred Wertheimer On Today’s D.C. Court Of Appeals Unanimous Rejection Of Trump’s Immunity Claim & What’s Next
A D.C. Circuit Court three-judge panel today sharply and unanimously rejected former President Donald Trump’s claim that he has absolute immunity against criminal prosecution for actions he took while President.
Democracy 21 applauds today’s unanimous court decision. Trump’s claim of absolute criminal immunity is meritless and a stark rejection of our nation’s foundational principle that no person is above the law.
Today’s court decision moves us one step closer to a trial of the most important criminal case pending against former President Trump.
The case, United States v. Donald J. Trump, brought by Special Counsel Jack Smith, deals with the issue of whether Trump will be held criminally accountable for his alleged attempts to overturn the 2020 presidential election and for inciting the January 6 mob attack on the Capitol.
In response, Trump claimed he is immune from this prosecution as a former President. In December, the district court rejected his immunity defense, and Trump appealed to the D.C. Circuit Court of Appeals.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the three-judge panel wrote in their unanimous opinion today.
According to the ruling:
“At bottom, former President Trump’s stance [on immunity] 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.”
The Court opinion concluded:
“We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that ‘[c]oncerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case. See [Nixon v.] Fitzgerald, 457 U.S. at 747–48. We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution. 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.”
On December 29, an amicus brief was submitted in the Court of Appeals, led by Seth Waxman, of WilmerHale and a former U.S. Solicitor General, supporting the district court’s ruling that former President Trump’s extraordinary request that the court grant him absolute immunity from federal criminal prosecution for all official acts he took while President has no basis in constitutional text, structure, or history. I was part of the legal team that prepared and filed the brief.
Trump’s overriding strategy throughout his professional career has been to delay as long as possible the many legal challenges he has faced. His efforts in this case are part of his oft-used strategy of delay.
Trump’s goal is to get this criminal trial postponed until after the 2024 presidential election, at which time, if he wins the election, he can order his new Attorney General to drop the case.
Federal district court Judge Tanya Chutkan originally set March 4 as the start date for Trump’s trial. But after Trump asserted his immunity defense, she issued a stay of further pre-trial proceedings in the case and recently vacated the March 4 trial date pending final disposition of this appeal.
The ability of the trial to be held in advance of the November 2024 election hinges on what happens next.
In issuing its ruling today, the D.C. Circuit panel held that the court’s “mandate” – its order affirming the district court’s rejection of Trump’s immunity defense – should issue next week, on February 12. In other words, the district court could, on February 12, resume conducting pre-trial activities in the case and set a new trial date.
But the Court of Appeals order also provides that Trump can ask the Supreme Court for a stay in the case pending a filing with the Court of a petition for certiorari.
Under the D.C. Circuit’s ruling, Trump would have to seek this stay by February 12 in order to stop Judge Chutkan from resuming pre-trial activities. A statement from a Trump campaign spokesman this morning indicates that will be their plan.
The Supreme Court would likely grant the stay pending its final decision on the appeal.
Alternatively, Trump could first ask the full D.C. Circuit to review today’s decision by a three-judge panel. Such requests are rarely granted.
If Trump makes this request, Judge Chutkan would be able to proceed with pre-trial proceedings after February 12 unless the full D.C. Circuit Court of Appeals decides to grant review, in which case the stay would go back into effect until a ruling by the full Court. At that point, if he loses, Trump could then ask the Supreme Court for further review and again seek a stay of the trial pending that review.
Ultimately, the fate of Trump’s criminal trial will rest squarely in the hands of the Supreme Court.
If the Supreme Court Justices rule in a manner that leaves room for a timely trial this year, they will knowingly recognize that citizens have a right to know before they vote in this year’s election whether Trump has been found guilty of criminal conduct by a jury of his peers.
If the Justices’ decision, however, prevents a trial from occurring in 2024, they will have knowingly denied voters essential information to which they are entitled prior to voting in November.
The Justices’ decision also could kill any federal accountability for Trump’s alleged criminal activities regarding the 2020 presidential election.
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