A federal appeals court has soundly rejected claims made by former President Donald Trump asserting that his purported “presidential immunity” shields him from any liability relating to violent attack on the United States Capitol on January 6, 2021. The court also ruled he can be charged for trying to usurp the results of the 2020 presidential election.
In December, federal Judge Tanya Chutkan, who is overseeing the pre-trial stage of the case against Trump alleging that he tried to defraud the U.S. government by engaging in actions to overturn the election, rejected claims by the former president’s lawyers that the trial should be dismissed entirely due to him having presidential immunity. The lawyers argued that Trump was simply acting in his capacity as president at the time and cannot be charged for doing so after leaving office. They appealed Chutkan’s ruling to the Circuit Court of Appeals for the District of Columbia, where a three-judge panel heard his claims in early January.
On Tuesday, nearly a month after those judges held that hearing, the court issued a unanimous ruling affirming Chutkan’s original findings. “Former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the D.C. court wrote in its opinion. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The court said what Trump had requested would be unprecedented, stating that:
Former President Trump’s claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility.
Lawyers for Trump echoed in court what he’s been saying in public statements: that former presidents cannot be prosecuted because it would stymie the work of current presidents if they knew they could be held accountable for their actions after leaving office.
Incredibly, during the January appellate court hearing, Trump attorney John Sauer asserted this kind of protection could also extend to presidents ordering assassinations against their political rivals, and that impeachment alone was the only course of action to take against presidents wielding their powers in such dangerous ways.
The appellate court forcefully rejected these notions, pointing to the fact that the Supreme Court has rejected such arguments before in United States v. Nixon, in which the high court said that it could not “conclude that [Presidential] advisers will be moved to temper the candor of their remarks by the infrequent occasions of disclosure because of the possibility that such conversations will be called for in the context of a criminal prosecution.”
The opinion went on to state that, “We cannot presume that a President will be unduly cowed by the prospect of post-Presidency criminal liability any more than a juror would be influenced by the prospect of post-deliberation criminal liability, or an executive aide would be quieted by the prospect of the disclosure of communications in a criminal prosecution.”
Noting that Trump’s layers previously claimed in his 2021 impeachment defense the exact opposite — that the proper place to hold presidents accountable is after their tenure, the opinion also stated that, “past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances, so the possibility of chilling executive action is already in effect.”
Further, the court expressly discussed Trump’s specific actions on and around January 6, writing that his “alleged efforts to remain in power despite losing the 2020 election were, if proven, [are] an unprecedented assault on the structure of our government.”
The court added that, “He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress.”
Ultimately, it would be wrong “to immunize former President Trump’s actions,” the court concluded, stating that:
We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results. Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.
A spokesperson for Trump said the former president will appeal the ruling to a higher court. Trump can do so, either to the full D.C. District Court of Appeals in an en banc request or directly to the Supreme Court. If the high court does agree to hear the case, it doesn’t have to issue a stay, either: It can grant writ of certiorari to hear the arguments at a later date while still allowing the case to continue onward in Judge Chutkan’s court.
Legal experts lauded the ruling, noting that the way in which it was worded would likely mean the Supreme Court wouldn’t grant an appeals hearing. “I’ve skimmed the DC Circuit opinion rejecting Trump’s immunity arguments. Yes, they took their time, but it was worth it,” wrote Boston University School of Law Professor Jed Shugerman in a post on X. “It’s a thorough unanimous opinion that covers all the bases, so [the Supreme Court] is more likely to deny cert, and more likely a trial starts.”
Former Acting Solicitor General Neal Katyal also chimed in on X, writing, “I do not think the Supreme Court will hear Trump’s appeal. Of course, anything can happen and it takes 4 of the 9 Justices to vote to hear a case. But Trump’s argument is so weak and the Court of Appeals decision so thorough and well done, I can see [the Supreme Court] voting not to hear it.”