By Claire Wofford
In a 57-page opinion issued on Feb. 6, 2024, a federal appeals court ruled against former President Donald Trump, deciding that presidents are not immune from criminal prosecution for actions they took while in office.
The decision allows the federal prosecution of Trump for attempting to undermine the 2020 election to continue.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit – two appointed by Democratic presidents and one by a Republican – affirmed the Dec. 1, 2023, ruling of District Court Judge Tonya Chutkan, in which she said that a former president does not enjoy complete immunity from criminal prosecution for actions taken while in office.
The Hill reported that Trump spokesman Steven Cheung responded to the appeals court ruling by saying, “President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution.” The decision, Cheung said, “threatens the bedrock of our Republic.”
The appeals court panel rejected Trump’s argument that the structure of U.S. government and the demands of the presidency necessitated immunity, instead stating that his claims of “unbounded authority to commit crimes” would “collapse our system of separated powers.” In their words, “President Trump has become citizen Trump,” and therefore had only the defenses available to any criminal defendant, not a special immunity privilege unavailable to anyone else.
As a scholar of judicial behavior and American politics, I have been closely watching this case. The court’s decision, particularly if the Supreme Court allows it to stand, is likely to have ramifications across the U.S. legal and political systems for decades.
‘Divine right of kings’
Trump is the subject of multiple civil and criminal cases in both state and federal courts. He is currently appealing several of them, including one relating to his appearance on the Colorado ballot, which the Supreme Court has already agreed to hear.
In mid-December 2023, the federal government asked the Supreme Court to weigh in on the immunity dispute as well, but the court declined to do so, at least until the appeal was heard by the U.S. Court of Appeals for the District of Columbia Circuit
Kent Nishimura / Los Angeles Times via Getty Images
This particular case involves the prosecution of Trump by special counsel Jack Smith. On Aug. 1, 2023, Smith indicted Trump on four counts of violating federal law for his conduct relating to the 2020 election, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding and conspiracy against rights. The proceeding in the appeals court was not about whether Trump committed these crimes but whether he could be prosecuted for them at all.
Trump’s argument centered on a claim of presidential immunity – the notion that a president cannot be subjected to legal action for official conduct or actions taken as part of the job. While there is no explicit language in the U.S. Constitution about such immunity, the Supreme Court had previously ruled in Nixon v. Fitzgerald that presidents can be protected from civil lawsuits for their “official acts.”
The Nixon decision did not control the outcome here, however, because that case involved a civil lawsuit rather than a criminal prosecution. As highlighted during the oral argument in Trump’s appeal, that distinction – of whether it’s a civil or criminal case – makes a world of difference.
Protecting the president from the hassles of civil litigation is one thing; permitting the president, charged in Article 2 of the Constitution with faithful execution of the laws, to be able to break those same laws with impunity is quite another.
That sort of upside-down world is precisely what led District Court Judge Chutkan to issue her sweeping ruling on Dec. 1, 2023, that presidents are not immune from prosecution for crimes committed while in office. As she put it, Trump did not have the “divine right of kings to evade criminal accountability.” The court today agreed with that sentiment.
High stakes
The oral argument before the appeals court on Jan. 9, 2024, was similarly dramatic.
The three judges spent over an hour rigorously questioning both sides, and the language was often sweeping.
Trump’s lawyer spoke of a president’s need to take “bold and fearless” executive action, to not have to constantly “look over their shoulder” for fear of prosecution and of the “republic shattering” consequences of ruling against the former president. Judge Florence Y. Pan raised striking hypotheticals about presidents assassinating political opponents or selling national security secrets to foreign governments. The lawyer for the federal government noted the “frightening future” if presidents were free to violate the law while in office.
The court’s opinion addressed Trump’s argument that future presidents would be unable to take decisive action for fear of prosecution. The judges ruled that the risk of “chilling … Presidential action appears to be low” and was outweighed by the public’s interest in accountability.
The appeals court judges included a passage from a Supreme Court opinion in their decision:
“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it.”
That principle, the appeals court panel wrote, “applies, of course, to a President.”
The court’s Feb. 6, 2024, decision will have a substantial impact, at least until any final ruling is issued by the Supreme Court.
Trump can be criminally prosecuted for the actions he took to overturn the 2020 election. Whether the case makes it to trial or results in a conviction, what happens to all the other pending cases involving Trump, and whether the former president is returned to the White House, are unanswered questions so far.
The Supreme Court will surely be asked to provide some of those answers.
Claire Wofford is Associate Professor of Political Science at the College of Charleston.
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DaleL says
The appeals court ruling is quite remarkable. It was issued just four weeks after the oral arguments. That is amazingly fast. Also, as part of the decision, the court referenced the 1803 Marbury v. Madison Supreme Court decision. Chief Justice John Marshall said, the D.C. Circuit observed: that the executive remains an “officer of the law,”.
This potentially has significance with respect to the 14th Amendment, Section 3 insurrection case which is to be resolved by the Supreme Court. One of the main arguments by Mr. Trump is that the President is not an officer of the United States. The use of the term “officer” by the appeals court to refer to a president is consistent with the wording of the 14th Amendment.
One of Mr. Trump’s former attorneys also said that Mr. Trump would likely not like it that the court referred to him as 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.”
Deborah Coffey says
CITIZEN Trump. CITIZEN Trump. CITIZEN Trump. That will make him even crazier. We should use the term now every time we refer to him.
Dave says
“Right of Kings “, hell Trump think he is a KING. Where have you been. He feels he is above the law and always has. He always notes he is smarter and better than our generals, IF these courts don’t lock him up it proves, the rich and powerful and privileged are above the law.
“”[W]ho knows more about lawsuits than I do? I’m the king”. Jan 2016
” “I’m the king of debt. I’m great with debt. Nobody knows debt better than me.” June 2016
Narcissist you bet ”
“I think nobody knows more about campaign finance than I do, because I’m the biggest contributor.” (1999.)
“I know more about drones than anybody. I know about every form of safety that you can have.” Jan 2019
“I know more about ISIS than the generals do.” N0v 2015
“”I know more about courts than any human being on Earth.” Nov 2015
“The U.S. government system: “[N]obody knows the system better than I do.” April 2016
Renewable energy: “I know more about renewables than any human being on Earth.” April 2016
So many more from a narcissist buffoon.
Judith Michaud says
I can not believe this craziness has gone this far ! How can he even be allowed to run when so many in our government offices were forced to resign just on sex crimes ! Trump has already been found guilty of sexual abuse in the Carroll case , so why is he different from anyone else ! What is his hold on the Republicans ?? Scary to me !
David S says
Trump. I wish he would take a long walk on a short pier. He is nothing but an eye sore I just hope he ends up in Prison before the Nov election.
Joe D says
More of my tax money for this appeals CIRCUS….
All the defense TECHNICALITIES….”immunity” /presidential privilege/postponements/delays.
We know ( from the beginning) EVERY CASE won’t stop until the Supreme Count level. Former president Trump APPOINTED 3 of the Justices, and several more are documented conservatives giving an almost GUARANTEED decision in Trump’s favor ( at least he assumes it will be, as a payback for their LIFETIME appointments).
If not a complete exoneration, the results will be the equivalent of a PRESIDENTIAL slap on the wrist, at most!
Just can’t imagine another 4 years of lies, and drama…
Land of no turn signals says says
Only the Biden’s can evade the law
Sherry says
@lonts. . . State your credentialed EVIDENCE that President Joe Biden is “evading the law”. . . otherwise we will all know that all you can do is spout FOX BS talking points.
DaleL says
Citizen Trump did appoint three of the Justices. However, I believe he followed the advice of conservative Republican organizations such as the Federalist Society. The Justices are appointed for life and can only be removed by impeachment and conviction. Citizen Trump has no direct method to influence their decisions. The Justices that Citizen Trump appointed will be on the Supreme Court long after he is gone. They are not beholden to him.
The two most senior Justices have been accused of accepting improper gifts in the form of luxury vacations by wealthy individuals. In particular, the wife of Justice Thomas is a prominent and outspoken supporter of Citizen Trump.
At nearly every turn, Citizen Trump has verbally attacked prosecutors, judges, witnesses, and in general the rule of law. The Justices on the Supreme Court are not at liberty to express their opinion of Citizen Trump, but I do not think that they hold him in high regard. I also do not think that they are fools. I believe that they will refuse to hear his appeal of presidential immunity. I also believe that they will rule that Citizen Trump is ineligible to hold any office, including that of president. I do not think it will be a narrow decision that pertains to only Colorado. Rather, I think it will be written in a tone similar this ruling by the District Court of Columbia and will apply to the entire United States.
The alternative would be to condone the use of stochastic terrorism in politics and mob rule.
DaleL says
“Biden’s” is a singular possessive. Your sentence, if taken literally as written, does not make any sense.
If one assumes that you meant to write “Biden” singular or “Bidens” plural, your sentence is obviously factually inaccurate. It is obvious that other individuals, over the history of our country, have evaded the law. The Bidens have no special powers or ability to evade “the law”.
I am also puzzled how during Citizen Trump’s presidency, that neither of the two attorney generals which Citizen Trump appointed were able to crack down on the alleged Biden(s) evasion of the law. Even now, the MAGA Republicans in the US House are coming up empty in their search for any criminality by President Biden.