Donald Trump can be prosecuted for trying to overturn the 2020 US election, a federal appeals court ruled, rejecting his claim that a president is immune from criminal charges.
The unanimous decision by a three-judge panel with the US Court of Appeals for the DC Circuit moves him closer to trial before November’s presidential election as he seeks a return to the White House. It also marks a watershed moment in the federal prosecution of Trump for conspiring to reverse his loss in the last election.
In a strongly-worded 57-page opinion, the panel said Trump’s alleged effort to illegally remain in power, if proven, would represent an “unprecedented assault on the structure of our government” that cannot be immunized.
“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 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.”
Trump, the frontrunner for the Republican nomination, may be the first major party candidate to stand trial for criminal actions while campaigning for the presidency. The case brought by Special Counsel Jack Smith’s office had been set for trial on March 4, but the date was canceled and hasn’t yet been reset. It’s one of four criminal cases Trump is facing, including a similar election case under state law in Georgia.
Trump will appeal, his campaign spokesman Steven Cheung said in a statement.
“Prosecuting a president for official acts violates the Constitution and threatens the bedrock of our Republic,” Cheung said. “President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution.”
Smith’s office declined to comment.
The panel — comprised of two judges appointed by President Joe Biden and one by George H.W. Bush — put its decision on hold until Feb. 12 to give Trump time to seek review from the US Supreme Court. Trump could also first seek review from the full appellate panel.
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‘Citizen Trump’
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel said. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
Lawyers for Trump and Smith presented oral arguments before the panel on Jan. 9 during a hearing that Trump attended.
The appellate panel said that Trump’s argument “would collapse our system of separated powers by placing the president beyond the reach of all three branches,” adding that neither a sitting nor former president has immunity from prosecution.
“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,” the panel said. “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
The panel also rejected Trump’s argument that he would face unconstitutional “double jeopardy” from the criminal case because the former president previously prevailed in an impeachment trial in the US Senate over the same conduct.
Jan. 6 Capitol Riot
“Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached,” the panel wrote.
Trump’s lawyers argued he should be immune from prosecution because his actions before and during the Jan. 6, 2021 riot at the US Capitol were within the bounds of his official duties as president. Trump’s team has pointed to a 1982 Supreme Court ruling that said, with regard to civil suits, presidents have complete immunity for actions taken within the “outer perimeter” of their official duties.
Lawyers for Smith said presidents don’t have immunity from criminal acts committed while they were in office, citing the pardon given to former President Richard Nixon before he could be indicted over the Watergate scandal. The fact that Nixon was pardoned shows that it’s possible for a president to be charged after he or she leaves office, they argued.
US District Judge Tanya Chutkan, who is presiding over the Trump trial in Washington, ruled in December that the former president is not entitled to absolute immunity, saying that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Trump’s arguments got a chilly reception from the appellate panel during oral arguments in January, when one of the judges grilled Trump’s lawyer about whether a president would be immune from criminal charges even after having a rival assassinated by Seal Team Six. Trump’s lawyer repeatedly declined to give a direct answer.
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