In a major legal defeat for former President Donald Trump, the U.S. Court of Appeals for the District of Columbia Circuit has nixed his bid for immunity over the January 6 coup attempt.
Trump has until Feb. 12 to put in an appeal to the Supreme Court, but some legal experts contend the three-judge panel’s decision is so well-written the Supreme Court could decline to take up the case. The former President and his son, Donald Trump, Jr. have already blasted the ruling on social media and Trump has made it clear he has hopes in taking it to the Supreme Court. He appointed three judges to the court.
The New Republic’s headline was: “Trump Just Lost His ‘Presidential Immunityi Argument. Thoughts, Prayers.” And, indeed, the 5-page ruling reportedly has little positive to say about Trump.
A federal appeals court has unanimously ruled that Donald Trump can be put on trial for trying to stay in power after losing the 2020 election, rejecting Trump’s sweeping claim of presidential immunity and moving the case one step closer to a jury.
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“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,” the panel of three judges wrote. “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.”
The ruling comes days before the Supreme Court considers another untested question raised by Trump’s candidacy — whether the former president is an insurrectionist barred by the Constitution from returning to the White House because of his actions around Jan. 6.
This was the most crucial quote from the ruling:
Trump’s legal argument would “collapse our system of separated powers by placing the President beyond the reach of all three Branches,” the appeals judges wrote. “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. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
Trump’s attorney had argued he was immune in three ways: his conduct was not eligible for judicial review under the separation of powers doctrine; that the executive branch could not be infringed on as a result; and that a clause known as the Impeachment Judgment Clause flatly barred any criminal prosecution unless the former president had been impeached and convicted by Congress on that charge.
On the separation of powers question, the court wrote that “it is settled law” that it the doctrine “does not bar every exercise of jurisdiction over the presidents of the United States” and that as it was determined in U.S. v Nixon, there is not an “absolute, unqualified presidential privilege of immunity from judicial processes under all circumstances.”
The court also found that Trump’s oft-repeated claims in and out of court that a president “can never be examinable by the courts” is a misreading of Marbury v. Madison, the very case which established judicial review on the presidency and distinguished between ministerial and discretionary duties, providing a check on a president’s political will and power.
It is also a misreading of several important cases that came after, including matters which put checks on powerful offices from the president to the postmaster general:
“But as the Supreme Court has unequivocally explained: No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.”
This may sound familiar to Trump. His appointee, Supreme Court Justice Brett Kavanaugh, concurred with this concept in Trump v. Vance, the appeals court noted.
The separation of powers argument advanced by Trump also falls apart when analogous considerations are made for legislators and judges.
"It has major implications for the #elections…it's going to cost #DonaldTrump," Center for Politics Director@LarrySabato joined @cnni to discuss the #AppealsCourt ruling & upcoming #SCOTUS ballot eligibility case. Watch the full clip: pic.twitter.com/fZvar8tSFo
— Center for Politics at UVA (@Center4Politics) February 6, 2024
People need to actually read this the most important part of the entire thing. It’s where you can glean the timeline. The DC panel basically makes it the SCOTUS’ call if the American People know if they will be voting for a convicted felon.
I think that’s a lot of pressure https://t.co/MqdeSrHtGf
— Armando (@ArmandoNDK) February 6, 2024
CNN legal analyst Elie Honig on the appeals court ruling that Donald Trump does not have immunity:
"A huge win for Jack Smith. An unequivocal win for Jack Smith…This is a remarkably forceful ruling! I don’t know if there’s a good word in here for Donald Trump in 57 pages." pic.twitter.com/WO03WHwveT
— Republicans against Trump (@RpsAgainstTrump) February 6, 2024
My favorite part was this:
“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.”
Game Set. Match.
— Gen Michael Hayden (@GenMhayden) February 6, 2024
Presidents who don’t spend their entire time in office committing crimes have no need for “absolute immunity.” And you know who argued that Presidents DON’T have absolute immunity and can be prosecuted after leaving office? TRUMP’S OWN LAWYERS IN HIS IMPEACHMENT TRIAL pic.twitter.com/6yKEOVlM6j
— Andrew—Author of America Rises On Substack—Wortman (@AmoneyResists) February 6, 2024
Yeah, no. You lose. Again. pic.twitter.com/TFHBf5JZQx
— Charlie Sykes (@SykesCharlie) February 6, 2024
No previous presidents demanded “total presidential immunity” because they didn't try to overthrow our democracy. pic.twitter.com/NHtAYtujMN
— Republicans against Trump (@RpsAgainstTrump) February 6, 2024
I've skimmed the DC Circuit opinion rejecting Trump's immunity arguments.
Yes, they took their time, but it was worth it.
It's a thorough unanimous opinion that covers all the bases, so SCOTUS is more likely to deny cert, and more likely a trial starts.https://t.co/Ql3H93sGME
— Jed Shugerman (@jedshug) February 6, 2024
@neal_katyal says on @MSNBC that in wake of D.C. Circuit ruling, "I don't think the Supreme Court's going to take this," and predicts SCOTUS will decline case before end of this month, allowing Trump insurrection trial to proceed this spring.
— Michael Beschloss (@BeschlossDC) February 6, 2024
SCOTUS will ultimately uphold the DC circuit ruling. https://t.co/pT2NExEXSe
— Andrew C Laufer, Esq (@lauferlaw) February 6, 2024
Johnson learns about Trump losing his appeal. “We call it lawfare” he says. We call it the Rule of Law, Mike. pic.twitter.com/mZ0HfybIxf
— Ron Filipkowski (@RonFilipkowski) February 6, 2024
This is the core of the reasoning, on pages 40-41:
“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. Presidential immunity against federal indictment would mean that, as to…
— Laurence Tribe ?? ?? (@tribelaw) February 6, 2024
Trump not immune.
“Trump’s stance would collapse our system of separated powers by placing the President above the reach of all three Branches”
This is the most important point I’ve seen so far — and precisely why SCOTUS should refuse to hear this case outright. pic.twitter.com/42G3NLCj51
— Angry Staffer ? (@Angry_Staffer) February 6, 2024
“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… https://t.co/C57x6EgSNS
— George Conway (@gtconway3d) February 6, 2024
Unanimous. What took so long? Making it airtight for SCOTUS, perhaps. https://t.co/Ioox67taX2
— Dan Rather (@DanRather) February 6, 2024
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Joe Gandelman is a former fulltime journalist who freelanced in India, Spain, Bangladesh and Cypress writing for publications such as the Christian Science Monitor and Newsweek. He also did radio reports from Madrid for NPR’s All Things Considered. He has worked on two U.S. newspapers and quit the news biz in 1990 to go into entertainment. He also has written for The Week and several online publications, did a column for Cagle Cartoons Syndicate and has appeared on CNN.