Trump loses the argument that he is legally immune from prosecution for alleged crimes during his term in office.
The loss was unanimous and justified.
Today’s unanimous holding by the DC Circuit was expected. Trump’s argument for immunity from prosecution had much in common with the Never Trumper argument that The Donald should be disqualified from appearing on the ballot at all: Both turned their back on long-settled arrangements for resolving the country’s big questions, and instead tried to peddle implausibly stretched legalism in place of law. The disqualification argument relies on stretching “insurrection” quite a bit, and “engaged in” well beyond the breaking point, all in the name of subverting democracy while pretending to save it. Trump’s argument for immunity gambled on the court’s willingness to break faith with what is perhaps the country’s most hallowed founding principle — that no one is above the law.
The Fourteenth Amendment disqualification argument is going to fail on its merits in the Supreme Court, and the immunity argument that lost today isn’t even going to get there. The DC Circuit’s opinion is legally sound and does not conflict with the holdings of other circuits, so Trump’s forthcoming petition for Supreme Court review will fail, very likely by a unanimous vote. (There might be separate statements by individual justices when certiorari is denied, but I doubt there will be any votes to take the case).
I’m going to go through today’s opinion so readers won’t have to (all 76 dense pages of it), but, as is my wont, I want to get to the heart of it quickly and in a way lay readers will understand: Suppose Trump were alleged to have sold nuclear secrets to the Chinese while in office, for a nice fat $10,000,000, and there were solid evidence for the allegation. Would any sane person think that he should, or would be held to be, immune from prosecution for that? Suppose there were tape of his having sex with a five year-old in the White House living quarters. Same question — is it possible to craft an even marginally plausible argument that the law insulates him from having to face judgment in court? The law is sometimes an ass, as Paul has noted, but not to that extent, not in a country, like ours, with a basic sense of justice, and still less in a country founded on the principle that the high and the low are equally accountable before the law.
Let me say one other thing at the outset to unravel an argument I’ve sometimes heard — that sovereign immunity is somehow implicated here. The short answer is that sovereign immunity applies only to civil, and not to criminal, cases. Police and prosecutors are sometimes accused of tortious wrongdoing, and in many of those instances are protected by sovereign immunity from having to answer in court. The reasons for this, sound in my view, are explained by Justice Powell in his opinion for the Court in Imbler v. Pachtman, 424 U.S. 409 (1976). But sovereign immunity has never extended to criminal cases. Ask Derek Chauvin.
Today’s opinion in the main rejected Trump’s three principal arguments for immunity from prosecution for acts he undertook while President: That separation of powers requires this outcome; that the structure of the Constitution itself mandates that a President not be held criminally liable for his acts in Office; and that in any event the Double Jeopardy Clause bars the prosecution from a “second bite at the apple” in view of his having been impeached for largely the same conduct.
A very smart former Assistant US Attorney, now Adjunct Professor of Law at George Washington University, Randall Eliason, took these on seriatim and in my view nailed it. Let’s start from the beginning. (N.B. Except where noted by brackets, I’m quoting Eliason; the blocked passage is taken from the court’s opinion).
1. Separation of Powers
Trump first argued that under the Constitution’s separation of powers, federal courts lack jurisdiction to review the official acts of a president. The court said it was true that for certain discretionary acts assigned to the president by the Constitution, the president is answerable only to politics and his own conscience. But Supreme Court decisions have always made clear that courts may review a president’s actions — even “official” ones — when they allegedly violate federal law. To hold otherwise would give a president the ability to make both Congress and the courts powerless.
The court reviewed a long line of Supreme Court decisions [in both civil and criminal cases] holding that a president’s actions may be reviewed by the courts if they are alleged to violate the law:
The separation of powers doctrine . . . necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws.
The court noted that its conclusion was bolstered by decisions finding that judges and members of Congress are subject to criminal prosecution for official acts that violate the law. Separation of powers dictates that what is true for the judicial and legislative branches must also be true for the executive. [In other words, separation of powers intelligently understood means the opposite of what Trump was arguing].
2. Constitutional Policy Considerations
Even though it had determined the separation of powers did not deprive the courts of the jurisdiction to hear the case, the court said it still was required to consider whether policy considerations based on our constitutional structure and history justify criminal immunity for a former president. The court concluded the answer is no.
Trump had argued (and still argues) that presidential immunity is required because without it presidents will be chilled in the exercise of their official powers. He claimed that presidents will hesitate to act boldly and decisively when required, based on a fear of future criminal prosecution. He also argued that if immunity is denied it will open the floodgates and every future president routinely will be prosecuted by his or her successor.
The court said there was little to suggest that presidents will be cowed by fear of future criminal liability. It noted that at least since the Nixon era, sitting presidents have assumed that they were subject to potential criminal liability after they leave office. Ford granted Nixon a pardon, which would have been unnecessary if prosecution were impossible. Clinton agreed to pay a fine and have his law license suspended in exchange for a promise from an independent counsel not to indict him. The court also pointed out that during Trump’s 2021 impeachment trial, his own attorney argued that the appropriate remedy was not impeachment but the criminal process, “to which no former officeholder is immune.” There is no evidence, the court said, that this knowledge of potential prosecution has had any chilling effect.
The court also noted that rather than causing a president to fear taking appropriate actions, the prospect of criminal prosecution could have the positive effect of deterring abuses of power and criminal behavior. It quoted with approval [a line] from Judge Chutkan’s opinion: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.” The court also rejected the “floodgates” argument, that in the absence of immunity every president will routinely end up being prosecuted. It noted that this claim was undercut by the very fact that Trump is the first former president ever to face indictment. It also pointed to safeguards against frivolous or vindictive prosecutions, including Justice Department standards, ethical obligations of prosecutors, the requirement of a grand jury indictment, and judicial review of any charges.
Overall, the court said, the risk of presidents being subject to meritless prosecutions is slight. And weighed against that is the profound public interest in the rule of law and enforcement of the criminal laws. The court noted that the president has the constitutional obligation to take care that the law are faithfully executed, and said: “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….”
3. Impeachment Judgment Clause/Double Jeopardy
Trump’s final argument was based on the impeachment judgment clause and double jeopardy. This was the weakest of his claims...
The impeachment judgment clause provides that the penalty for impeachment is only removal from office, but that “the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” Trump argued that the reference to the party “convicted” being subject to prosecution meant that if an official was impeached but not convicted, as he was, then that official could not later be prosecuted.
[The district court] ruled that this argument depends on a logical fallacy known as “denying the antecedent,” and the appeals court agreed: stating that if a president is convicted at impeachment he still can be prosecuted does not imply that if he is not convicted he cannot be prosecuted. The court explained why this argument was contrary to both the text and history of the impeachment clause. It also observed that this claim undermined Trump’s other arguments about absolute immunity, because he was agreeing the constitution provides a former president could be prosecuted for official acts — as long as he was impeached and convicted first.
Practically speaking, as the court observed, this argument would lead to absurd consequences. It would mean, for example, a president could engage in a crime spree in his final days of office with impunity, knowing there would not be time for an impeachment proceeding.
As for double jeopardy, the court held that it only bars successive criminal prosecutions. Impeachment is a political process, not a criminal one, and double jeopardy simply does not apply. Even assuming double jeopardy did apply, it would not bar prosecution here because the charges in Trump’s indictment are different from the charge for which he was indicted: incitement of an insurrection. When the charges in a subsequent case are different, there is no double jeopardy.
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OK class, there you have it. I apologize for going law professor on you, but what can I say? The opinion was both the big political and the big legal story of the moment. And these days, law professor is the only job I can get.
Very useful for this layman. Thanks!
The fact that Trump could make such absurd arguments and find lawyers willing to present them in federal court is perhaps the strongest demonstration of why he is unfit in every way to serve as president. It sickens me that he is who the Republican party is going to choose to oppose a disastrous octogenarian failure as the world erupts in flames.