Trump Just Lost His “Presidential Immunity” Argument. Thoughts, Prayers.
A Washington, D.C., appeals court ruled Tuesday that Donald Trump most certainly does not have “presidential immunity” in the indictment against him for trying to overthrow the 2020 presidential election.
Trump has repeatedly insisted that he cannot be prosecuted for trying to change the election results because he has presidential immunity against criminal proceedings. His lawyers argued his case to a panel of three appellate judges in Washington in early January.
The judges, however, ruled unanimously that Trump is wrong.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the judges said in the ruling.
“We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed,” they wrote. “We conclude that ‘Concerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case.”
“We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President—a contention that is unsupported by precedent, history or the text and structure of the Constitution. Finally, we are unpersuaded by his argument that this prosecution is barred by ‘double jeopardy principles.’”
Trump will likely appeal the ruling, meaning the case will head to the Supreme Court. This will delay Trump’s trial, which was originally set to begin on March 4, the day before Super Tuesday. The judge presiding over that trial, Tanya Chutkan, called off the March 4 start date last week and said she would set a new schedule once the appeals court ruled on Trump’s immunity.
Now that the court has ruled, it is not clear when the trial could resume. Chutkan has previously kept things moving fairly quickly, but she predicted Monday that the trial could be delayed until much later in the year. If that is the case, then the next trial Trump faces will be in his indictment for his role in hush-money payments to porn star Stormy Daniels. That trial is set to begin March 16.
Trump was indicted in August for his role in the January 6, 2021, insurrection and other attempts to overturn the 2020 presidential election. He faces one count each of conspiracy to defraud the United States, conspiracy to corruptly obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against the right to vote.
Trump has pleaded not guilty to all of the charges and has insisted the case should be dismissed altogether. He argues that former presidents can’t be criminally charged for actions related to their official responsibilities. He did not explain how overturning an election was related to official presidential duties.
While many critics say Trump’s immunity claim is a desperate attempt to avoid accountability, it could also be an attempt to ease his path toward increased power. As Greg Sargent wrote for The New Republic, “If he wins on this front, he’d be largely unshackled in a second presidential term, free to pursue all manner of corrupt designs with little fear of legal consequences after leaving office again.”
Trump’s own lawyer accidentally revealed as much while arguing why the former president should have immunity. During the hearing, Judge Florence Pan asked if a president would be immune from criminal prosecution if he had ordered Seal Team 6 to assassinate a political rival. She noted that an order to Seal Team 6 would be an official act. Trump’s lawyer John Sauer said the president could be prosecuted, but only if he had been impeached and convicted first—essentially saying that presidents should be able to order political assassinations in certain circumstances.
This article has been updated.
