• Washington Post

Trump Has No Immunity from Jan. 6 Prosecution, Appeals Court Rules

Jabin Botsford/The Washington Post
Former president Donald Trump, with attorney John Lauro, left, and D. John Sauer, center right, speaks to reporters after attending a hearing of the D.C. Circuit Court of Appeals on Jan. 9.

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 as dangerous and unsupported by the 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 Tuesday, they said 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,” the 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 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 reelection 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 Jan. 6.

Trump was appealing a decision by Tanya S. Chutkan, the judge overseeing his trial in D.C., and has made clear that 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 the judges 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.”

Having already promised if reelected to use the Justice Department to “go after” President Biden, Trump said after arguments in the D.C. Circuit that a ruling against him would mean “bedlam in the country.” In a statement Tuesday on the conservative site Truth Social, Trump posted that without “Full immunity … A President will be afraid to act for fear of the opposite Party’s Vicious Retribution after leaving Office.”

The D.C. Circuit dismissed that warning as “unsupported by history,” as “this is the first time since the Founding that a former President has been federally indicted.” The judges also pointed out that other ex-presidents believed themselves vulnerable to prosecution. Richard Nixon accepted a pardon “for all offenses” he “committed or may have committed” in office. Bill Clinton agreed to the suspension of his law license and a fine to avoid a possible indictment over the Monica Lewinsky scandal. Prosecutorial ethics and the grand jury process would “prevent baseless indictments,” the judges said.

The ruling also echoes an assessment made by Judge Florence Y. Pan during the arguments – that Trump’s claim he could be prosecuted as long as he was first impeached and convicted by Congress undermines rather than strengthens his argument. He “implicitly concedes that there is no absolute” immunity, the court wrote, and complains only about the process.

Trump’s impeachment claim relies on a single line in the Constitution saying that while Congress can only remove a person from office, “the party convicted shall nevertheless be liable and subject to indictment.” Trump, who was impeached by the House but acquitted by the Senate, argued that that must mean the opposite is also true, as he put it in his filings: “A president who is not convicted may not be subject to criminal prosecution.”

At oral argument, when asked whether Trump’s view would allow a president to order the assassination of a political rival, defense attorney D. John Sauer did not disagree. But he suggested that such an action would “speedily” result in impeachment.

The court called that “irrational” and “implausibl[e].” The argument that prosecution after an impeachment acquittal would violate the principle of double jeopardy was not serious, the court said – “impeachment is a political process,” and most of the senators who voted against Trump’s impeachment said they did so for reasons “unrelated to factual innocence.” Moreover, the court said, the single impeachment count of inciting an insurrection did not overlap completely with the charges against Trump in D.C. of conspiring to subvert the election results.

Even if presidents should be protected from prosecution for some acts, the court said, it is “doubtful” that Trump’s efforts to remain in office would qualify: “He allegedly injected himself into a process in which the President has no role.”

The Supreme Court in 1982 declared that presidents cannot be sued in civil court over official decisions. A different panel of the D.C. Circuit ruled late last year that lawsuits against Trump could go forward because campaigning for reelection is not an “official act.” Trump has indicated he plans to appeal that ruling as well.

The D.C. Circuit ruling is not binding in any other jurisdiction where Trump is accused of a crime. He is making similar arguments in Georgia, where he is accused of interfering specifically in that state’s 2020 election. But in that case, Trump is also arguing that the Constitution’s “supremacy clause” bars state prosecutors from indicting a former president. The special counsel has declined to address that issue, saying in court filings that “prosecution by a state or local entity would raise separate questions.” In New York State Court and Florida federal court, Trump faces trial for actions he took before or after his presidency.

“We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former,” the D.C. Circuit said in a footnote to its ruling.