Trump Has No Immunity from January 6 Prosecution, Appeal Court Rules

A United States Federal Appeals Court has ruled that former President Donald Trump can be put on trial for trying to stay in power after losing the 2020 election.

The court in a unanimous decision, rejected Trump's sweeping claim of presidential immunity as dangerous and unsupported by the U.S. Constitution.

At public arguments in January, the three judges expressed concern over the most extreme implications of Trump's view, with one suggesting it would allow a future president to order the assassination of a political rival.

But in their opinion yesterday, they say it is Trump's own alleged crimes — “an unprecedented assault on the structure of our government” — that threaten democracy if left beyond the reach of criminal prosecution.

“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,” the judges wrote.

The ruling, according to The Washington Post, is one of several expected this spring that could determine whether Trump will campaign for president this fall from behind bars — and whether he is able to compete for election at all. It comes days before the Supreme Court considers another untested question raised by Trump's candidacy — whether the former president is an insurrectionist prohibited by the Constitution from returning to the White House because of his actions around January 6.

Trump was appealing a decision made by Tanya. S. Chutkan, the judge overseeing his trial in D.C., and has made clear he plans to keep pressing his case in higher courts. The D.C. Circuit panel set tight deadlines for that review, saying it would give Trump only until Feb. 12 to ask the Supreme Court to intervene. That would make it hard for Trump to ask the full U.S. Court of Appeals for the D.C. Circuit to review the ruling first. While his legal arguments keep failing in court, even rulings against him increase his chances of delaying any federal trial in D.C. until after the presidential election, in which he is the Republican front-runner.

Trump's trial had been scheduled for March 4, one of four criminal prosecutions Trump faces while simultaneously campaigning to regain the White House. But it was postponed indefinitely last week for the appeals process on the immunity issue to continue.

The panel wrote “per curiam,” meaning they are “speaking with one voice,” in a 57-page opinion addressing all of the arguments Trump's attorneys made during arguments before the appellate court in January. “This opinion is as strong an argument against Supreme Court intervention as there could have been,” said Steve Vladeck, a professor at the University of Texas School of Law. “Whether it's strong enough is up to the justices.”

Five justices would have to agree to keep the trial on hold for Trump's appeal. Vladeck predicted that the Court would either take the case quickly and decide it before the term ends in late June or early July or not take it at all. “They don't want to be seen as running out the clock,” he said. “If they want to step in, I think they would want to step in this term.”

The Justice Department has long held that a current president cannot be prosecuted. But Trump raised the novel claim that former presidents cannot either, at least for actions related to their official duties, unless impeached and convicted by Congress first. Having been acquitted by the Senate of inciting the deadly attack on the Capitol on Jan. 6, 2021, Trump said that to try him in federal court would be a double jeopardy violation.

The lone Republican appointee on the panel, Karen L. Henderson, has historically been sympathetic to broad presidential power. But during the oral argument, she called it “paradoxical” that a president's duty to faithfully execute the laws would allow him to violate them.

That characterization is reflected in the final opinion, which calls Trump's position “a striking paradox.” It also suggests that some fear of future prosecution serves an important purpose: “to deter possible abuses of power and criminal behavior.”

The court quoted Chutkan's earlier ruling: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”