Trump is not immune from prosecution for bid to subvert the 2020 election, appeals court rules

Former President Donald Trump — and indeed any other former president — may be prosecuted for alleged crimes they committed while in office, a federal appeals court panel ruled Tuesday.

The unanimous 57-page decision from a three-judge panel of the D.C. Circuit Court of Appeals is a major win for special counsel Jack Smith, who is seeking to put Trump on trial this year on federal felony charges stemming from his efforts to overturn the 2020 election.

Trump quickly vowed an appeal, which could be at the Supreme Court by Monday.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the D.C. Circuit judges wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The ruling affirms U.S. District Judge Tanya Chutkan’s historic conclusion that former presidents may be prosecuted for crimes they committed in office, even if those alleged crimes arguably related to their official duties. Trump had argued that former presidents could not be prosecuted for such actions without first being impeached and convicted by Congress.

The pace of the appeals court’s action has been closely scrutinized and, in some ways, could be as significant as the substance of the ruling. The decision Tuesday came 28 days after oral arguments, slowing Smith’s case and forcing a delay in Trump’s scheduled March 4 trial, but leaving open the possibility that a jury could be convened to hear the case against him in Washington sometime this spring.

The judges put their decision on hold only until Monday to allow Trump to ask the Supreme Court to take up the immunity fight on an emergency basis. If he does so, the decision won’t take effect until the high court acts on his request, the appeals panel decreed.

Trump could also ask the D.C. Circuit to rehear the case. But the panel said doing that won’t delay the return of the case to Chutkan, the trial judge, unless the full bench of the D.C. Circuit agrees to a rehearing, which requires a majority of the 11 active appellate judges.

The force of Tuesday’s unanimous ruling Tuesday, backed by two liberal judges and one staunch conservative, may have been worth the wait for Smith. Rather than a splintered decision that could be picked apart more easily, the ruling lays out a groundbreaking legal and political framework for bringing a former president to trial.

“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,” the panel concluded.

The panel consisted of two judges appointed by President Joe Biden, Florence Pan and Michelle Childs, and one appointed by President George H.W. Bush, Karen Henderson. No specific judge was identified as the author of the decision.

The judges concluded that longstanding doctrines of “immunity” for presidents from civil lawsuits related to their official duties did not extend to alleged criminal acts — and certainly not for a former president. Similarly, they concluded that the gravity of the specific charges against Trump weighed heavily against declaring him immune, even when balanced against concerns about the chilling effect it could have on future presidents.

The panel emphasized that its conclusion did not weigh “policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.”

The panel also rejected Trump’s claim of “categorical” immunity from prosecution, noting that after President Richard Nixon resigned he accepted a presidential pardon to ward off potential criminal charges stemming from the Watergate affair.

“Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior,” the judges wrote.

The judges also sharply rejected the notion that former presidents may only be criminally prosecuted after first being impeached and convicted by Congress. They noted that 30 Republican senators refused to convict Trump during his impeachment trial related to the violent attack on the Capitol by contending that Congress lacks the power to put former presidents on trial. Those statements helped lead the judges to conclude the impeachment could not be a necessary predicate to criminal prosecution.

Following the appeals court ruling, Trump spokesperson Steven Cheung repeated Trump’s frequent claim that permitting his indictment would lead all future presidents to face vengeful indictments from their political adversaries after leaving office.

“Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic,” Cheung said in a statement announcing that Trump would appeal the decision.