The DC Circuit Dropkicked Trump's Magical Immunity Claims. Now What?
No, the president can't do crimes. Shut up.
Donald Trump’s plans to delay justice took a major hit in court today as the DC Circuit curbstomped his claims of presidential immunity in the election interference case.
“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 three-judge appeals panel wrote. “[A]ny executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Turns out, when you’re a star, they don’t just let you do it.
In August of 2023, the former president was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against voting rights. Trump’s lawyers immediately began spamming Judge Tanya Chutkan’s docket with gonzo motions alleging impropriety by the government and demanding that the case be dismissed based on various dubious grounds.
Normally that would just be a headache for the judge and her clerks — even garbage arguments take time to dispose of. But Trump’s motion to dismiss based on presidential immunity raised a threshold jurisdictional issue that threw an extra wrench in the works. Essentially, Trump argued he was covered by an enchanted cloak of immunity that shielded him from prosecution for anything he did while in office, and thus the court had no right to hear the case at all.
Judge Chutkan denied the magical forcefield motion, but, because immunity is supposed to protect from the burdens of trial as well as judgment, Trump claimed the right to an immediate appeal. He also insisted that this appeal stayed (i.e. froze) the case at the trial level. Presumably to expedite the matter, Special Counsel Jack Smith agreed on both fronts, and so the case has been on ice since December 13.
Law and Chaos is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
Trump’s Bad Arguments
Being Donald Trump’s lawyer requires a bottomless willingness to say very silly things with a straight face, preferably while feigning righteous indignation. Among the silly arguments in favor of immunity that Trump’s counsel made to the DC Circuit was the claim that no former president ever went to jail, ipso facto it is illegal to prosecute a former president.
“The 234-year tradition of not prosecuting Presidents for official acts strongly supports the existence of immunity,” they huffed.
That’s not a real legal argument, and the appellate court didn’t bother with it. But note that Trump’s lawyers put the rabbit in the hat here by presupposing that Trump was being prosecuted “for official acts.” In reality, the president has zero role in the congressional certification of state electors, unlike the vice president, who, in his role as president of the Senate, opens the envelopes under the Electoral Count Act.
Trump’s lawyers made a bizarre argument that the Constitution’s Take Care Clause transforms the president into a national policeman whose “duty must extend to exhorting other officials to exercise their responsibilities in a manner consistent with the President’s view of the public good.”
Or, as Richard Nixon put it 50 years ago, "When the president does it, that means that it is not illegal."
Of course, Nixon went on to accept a pardon from Gerald Ford — which would strongly suggest that they both thought presidents could face criminal charges for conduct in office. And, as the appellate court pointed out, Bill Clinton accepted a fine and surrendered his license to practice law in a deal to avoid prosecution.
The “Take Care” theory is closely related to Trump’s other merely bad argument: that the federal courts have no jurisdiction to punish a president for official acts, even crimes.
At oral argument, Trump’s attorney D. John Sauer was forced to admit that yes, he was actually saying that the sitting president could order SEAL Team 6 to assassinate his political rival, and no one could prosecute him for it — at least not unless Congress first impeached and convicted him. This argument refutes itself. It simply cannot be that the president can use his official position to commit murder and then claim presidential immunity to escape prosecution unless two-thirds of the Senate votes to uphold his impeachment.
Or as the court put it, “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.”
Trump’s Worse Arguments
Trump’s other two “constitutional” arguments were so facially ridiculous that they mostly served as a vehicle for the judges to dunk on him.
First, Trump advanced a convoluted theory that, because the Impeachment Judgment Clause allows for criminal prosecution after an impeachment in the House and conviction in the Senate, the inverse must also be true: That is, a failure to convict in the Senate means that a former president cannot be prosecuted for his crimes in office.
Impeachment Judgment Clause, Art. 1, § 7: Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
“To begin, former President Trump’s reliance on a negative implication is an immediate red flag,” the judges said by way of warmup.
“Former President Trump’s reading rests on a logical fallacy: Stating that ‘if the President is convicted, he can be prosecuted,’ does not necessarily mean that ‘if the President is not convicted, he cannot be prosecuted,’” they went on, citing to an opinion by one Justice Antonin Scalia, who scorned “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q.”
Trump’s second fakakta claim was that the prohibition on double jeopardy means you can’t be prosecuted if you’ve already been impeached by Congress. Which would make total sense if impeachment were a criminal procedure. And if the impeachment in the House and Senate constituted an actual trial. And if Trump were being charged here with incitement, as he was during the second impeachment.
Or, as the court put it, “To the extent former President Trump relies on ‘double jeopardy principles’ beyond the text of the Impeachment Judgment Clause, those principles cut against him.”
“This opinion is just one benchslap after another,” tweeted legal commentator Mike Sacks. (Look for him on the podcast soon!) “There's a constant, exasperated subtext of ‘you have to be either a political hack, a personality cultist, or both to take dude's arguments seriously.’"
But the three judges (two Biden appointees and one appointed by George W. Bush) managed to do so in a non-partisan matter. In short, the panel did an extremely competent, thorough job refuting every single one of Trump’s bad arguments in a small-C conservative way that will be difficult to overturn on appeal.
So, Now What?
Well, first whining. Obviously.
Next: Run to the Supreme Court and whine some more.
The Circuit Court’s judgment gives Trump until Monday, February 12 to seek relief from the Supreme Court, before the case will be sent back to Judge Chutkan. If Trump seeks en banc review from the full panel of judges on the DC Circuit, Judge Chutkan will be allowed to immediately resume her work — a poison pill to block Trump from extracting further delay before going to SCOTUS.
It should be noted that absolutely no one thinks the Supreme Court is going to buy Trump’s gobbledygook immunity arguments. Even Trump’s own appointees agreed in Trump v. Vance that a sitting president is subject to criminal process — they’re not going to endorse these dumbshit theories about a former officer being allowed to get away with crimes. The only question here is how much delay Trump will be able to wring out of the high Court, and whether it will be sufficient to push the trial off until after the 2024 election, potentially allowing him to get back into the White House so that he can arrest Special Counsel Jack Smith — or at the very least pardon himself.
If you want to read 1,200 (optimistic) words on all the ways this could shake out, the good people at Just Security have got you covered. But let’s break this down quick and dirty here:
The Court could grant a short stay to review Trump’s petition, and then deny cert, refusing to hear Trump’s immunity appeal. This is unlikely, particularly in light of the fact that both Trump and the special counsel have said the immunity issue can only be decided by the Supreme Court. But the conservative justices have shown themselves to be supremely uninterested in expending their dwindling political capital to rescue Trump, and it’s just possible that only Justices Thomas, Alito, and Gorsuch will want to entertain this nonsense. Three justices isn’t enough to grant review, however, and, if the Court winds up taking a flyer on this one, the trial could potentially begin in early summer.
The Court could treat Trump’s petition for a stay as a petition for review, grant cert, and expedite review. If (when) the court denies the immunity claim, the case would go back to the District Court in time for a late summer trial.
The Court could first order briefing on the petition for stay, then consider a petition for cert on an expedited basis, adding several weeks to the process.
The Court could grant the stay and grant cert, but without expediting the process, definitively pushing the trial off past the November election.
Wild Card: The Court could grant cert and not grant the stay, allowing the trial to proceed even as the immunity issue is litigated at SCOTUS. That would be very weird, but note that, while only four justices are needed to grant review (cert), it takes five to grant a stay. This would be a tacit admission that the court is reviewing a case where it sees little likelihood of reversing the trial and appellate courts — presumably because this is an issue of first impression, and the Court feels compelled to weigh in — but it’s not outside the realm of possibility.
Of these options, 4 is the worst by far. But this was an excellent, tightly written opinion that looks virtually unassailable. And if there’s anything that could persuade SCOTUS to give Trump the boot and send him back to the trial court, this is it.