Federal Appeals Court Rejects Trump’s Claim of Absolute Immunity

NY Times

Alan Feuer
Charlie Savage

By Alan Feuer and Charlie Savage

Feb. 6, 2024Updated 4:06 p.m. ET

The ruling answered a question that an appeals court had never addressed: Can former presidents escape being held accountable by the criminal justice system for things they did while in office?

A federal appeals court on Tuesday rejected former President Donald J. Trump’s claim that he was immune from prosecution on charges of plotting to subvert the results of the 2020 election, ruling that he must go to trial on a criminal indictment accusing him of seeking to overturn his loss to President Biden.

The unanimous ruling, by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, handed Mr. Trump a significant defeat. But it was unlikely to be the final word on his claims of executive immunity: Mr. Trump, who is on a path to locking up the Republican presidential nomination, is expected to continue his appeal to the Supreme Court.

Still, the panel’s 57-page rulingsignaled an important moment in American jurisprudence, answering a question that had never been addressed by an appeals court: Can former presidents escape being held accountable by the criminal justice system for things they did while in office?


The Times analyzed and annotated the ruling by a federal appeals panel rejecting former President Donald J. Trump’s claim of absolute immunity.

The question is novel because no former president until Mr. Trump had been indicted, so there was never an opportunity for a defendant to make — and courts to consider — the sweeping claim of executive immunity that he put forward.

The panel, composed of two judges appointed by Democrats and one Republican appointee, said in its decision that, despite the privileges of the office he once held, Mr. Trump was subject to federal criminal law like any other American.

Takeaways From Trump’s Indictment in the 2020 Election Inquiry

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Four charges for the former president. Former President Donald Trump was charged with four counts in connection with his widespread efforts to overturn the 2020 election. The indictment was filed by the special counsel Jack Smith in Federal District Court in Washington. Here are some key takeaways:

The indictment portrayed an attack on American democracy. Smith framed his case against Trump as one that cuts to a key function of democracy: the peaceful transfer of power. By underscoring this theme, Smith cast his effort as an effort not just to hold Trump accountable but also to defend the very core of democracy.

Trump was placed at the center of the conspiracy charges. Smith put Trump at the heart of three conspiracies that culminated on Jan. 6, 2021, in an attempt to obstruct Congress’s role in ratifying the Electoral College outcome. The special counsel argued that Trump knew that his claims about a stolen election were false, a point that, if proved, could be important to convincing a jury to convict him.

Trump didn’t do it alone.The indictment lists six co-conspirators without naming or indicting them. Based on the descriptions provided, they match the profiles of Trump lawyers and advisers who were willing to argue increasingly outlandish conspiracy and legal theories to keep him in power. It’s unclear whether these co-conspirators will be indicted.

Trump’s political power remains strong. Trump may be on trial in 2024 in three or four separate criminal cases, but so far the indictments appear not to have affected his standing with Republican voters. By a large margin, he remains his party’s front-runner in the presidential primaries.

“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 wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

The three judges cast Mr. Trump’s immunity claims as a danger to the nation’s constitutional system.

“At bottom, former President Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches,” they wrote. “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. We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”

A spokesman for Jack Smith, the special counsel who brought the case against Mr. Trump, declined to comment on the decision.

Steven Cheung, a spokesman for Mr. Trump’s campaign, said the former president “respectfully disagrees” with the decision and would appeal it.

“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party,” Mr. Cheung said. “Without complete immunity, a president of the United States would not be able to properly function.”

The panel’s ruling came nearly a month after it heard arguments on the immunity issue from Mr. Trump’s legal team and from prosecutors working for Mr. Smith. While the decision was quick by the standards of a normal appeal, what happens next will be arguably more important in determining not only when a trial on the election subversion charges will take place, but also on the timing of Mr. Trump’s three other criminal trials.

In addition to the federal indictment charging him with seeking to overturn his election loss in 2020, he faces similar charges brought by a district attorney in Georgia. In a footnote, the panel stressed that its decision did not address the separate question of whether state prosecutors could charge a former president over official actions.

Mr. Smith, the special counsel appointed to oversee the federal prosecutions, has also brought a case in Florida accusing Mr. Trump of mishandling highly sensitive classified documents after leaving office and obstructing efforts to retrieve them. And Mr. Trump is scheduled to go on trial next month in Manhattan on charges related to hush-money payments to a porn star during the 2016 campaign.

When Mr. Trump first sought to have the federal election case dismissed on grounds of immunity, it was an attempt to expand the protections the Supreme Court had already granted to sitting and former presidents against civil lawsuits concerning their official actions.

While not accepting that Mr. Trump’s actions were official — the panel noted that presidents have no constitutionally prescribed role in counting electoral college votes — the judges rejected his arguments about being immune from criminal charges.

“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 judges 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.”

Confused about the inquiries and legal cases involving former President Donald Trump? We’re here to help.

The unsigned decision was issued by all three judges: Karen L. Henderson, an appointee of former President George H.W. Bush, and two appointees of President Biden, Judges Florence Y. Pan and J. Michelle Childs.

During the arguments last month, the judges signaled particular concern after Mr. Trump’s lawyer argued that a former president could avoid criminal prosecution even for ordering SEAL Team 6, an elite group of Navy commandos, to assassinate one of his political rivals unless the Senate had first convicted him at an impeachment trial.

The panel rejected the Trump legal team’s arguments about the necessity of an impeachment conviction before bringing criminal charges.

And in another significant part of their decision, the three appellate judges also circumscribed Mr. Trump’s ability to use further appeals to waste more time and delay the election case from going to trial — a strategy the former president has pursued since the indictment against him was filed in August in Federal District Court in Washington.

The panel said that Mr. Trump had until Monday to ask the Supreme Court to get involved in the case and continue a stay of all the underlying proceedings. The case was initially put on hold by the trial judge in December.

But the panel imposed a rule designed to discourage Mr. Trump from making an intermediate challenge to the full court of appeals. It said that if Mr. Trump instead took that route, trial preparations could begin again after Feb. 12.

If the question does reach the Supreme Court, the justices will first have to decide whether to accept the case or to reject it and allow the appeals court’s ruling against Mr. Trump to stand.

If they decline to hear the issue, the case would be sent directly back to the trial judge, Tanya S. Chutkan. She scrapped her initial March 4 date for the trial last week, but has otherwise shown every sign of wanting to move the charges toward trial as quickly as possible.

If, however, the Supreme Court does accept the case, the crucial question will become how quickly the justices act in asking for briefs and in scheduling arguments. Should they move rapidly to hear the case and issue a decision, there remains the chance that a trial on the election charges will occur before the general election in November.

But if the justices take their time, it is possible a trial could be delayed until after the election. If that were to happen and Mr. Trump were to win, he would be in a position to ask his Justice Department to dismiss the case or even seek to pardon himself.

Even though Mr. Trump put three of the justices on the bench, the Supreme Court has not shown much of an appetite for wading into issues related to his efforts to tinker with the mechanics of American democracy.

But the question of how to handle Mr. Trump’s immunity claim is heading the Supreme Court’s way as it prepares for arguments on Thursday about another momentous question related to the former president: whether he can be disqualified from the ballot for having engaged in an act of insurrection by encouraging his supporters to storm the Capitol on Jan. 6, 2021.

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump.  More about Alan Feuer

Charlie Savage writes about national security and legal policy. More about Charlie Savage

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