A federal appeals court ruled Tuesday that former President Donald Trump isn’t “immune” from criminal charges in his federal case for trying to overturn the 2020 election—the latest and most consequential blow yet to Trump’s claims he has “absolute immunity” from criminal prosecution for acts he took while president, which is now likely to end up before the Supreme Court.
Then-President Donald Trump speaks to supporters from The Ellipse near the White House on January 6, ... [+]
A panel of appeals court judges refused Trump’s argument that as a former president, he should be immune from any criminal charges arising from acts he took while in office, ruling that “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” and any “executive immunity” he had as president “no longer protects him against this prosecution.”
The appeals court was asked to hear the case after U.S. District Judge Tanya Chutkan also rejected Trump’s argument—declaring the ex-president’s time in the White House doesn’t give him the “divine right of kings to evade the criminal accountability that governs his fellow citizens”—and the Supreme Court declined to hear the case immediately before the appeals court could rule.
Trump’s effort to dismiss the federal election case is part of a string of cases in which the ex-president has claimed “presidential immunity” to get out of legal problems, including in a separate criminal case for trying to overturn the 2020 election in Georgia, multiple civil cases seeking to hold him liable for the Jan. 6 riot and a civil defamation case brought against him by writer E. Jean Carroll after he attacked her for accusing him of sexual assault.
The DOJ has long held that presidents cannot be criminally indicted while in office—arguing in a memo it “would impermissibly undermine the capacity of the executive branch”—and the Supreme Court ruled in Nixon v. Fitzgerald that presidents can’t be held liable in civil cases for actions they undertook as part of their official duties, though the high court separately found in Clinton v. Jones that presidents can be sued in civil court for actions taken before they were president.
Whether ex-presidents can face criminal charges for actions they took while in the White House is still unsettled, however, with the Supreme Court yet to weigh in on that particular issue.
Federal district and appeals court judges have ruled the civil cases against Trump for allegedly inciting Jan. 6 can move forward despite the Nixon v. Fitzgerald precedent, saying Trump’s efforts to overturn the election and allegedly encourage supporters to riot were not part of his official duties as president.
Courts have also repeatedly rejected Trump’s immunity claims in Carroll’s case against him, with an appeals court finding in December that Trump didn’t bring up the immunity argument soon enough for it to be used in the case.
The appeals court’s ruling won’t take effect until Feb. 12—and only if Trump doesn’t go to the Supreme Court first, which would keep the proceedings paused until the high court weighs in. Trump has said he will take the case to the Supreme Court, though some legal experts have been skeptical the court will take up the case. The timing of the Supreme Court’s decision, and any oral arguments that might have to be held, is consequential, as Trump’s trial in the federal election case—initially scheduled for March—remains paused until the immunity issue gets resolved. Legal experts at Just Security have speculated the trial could now end anywhere between late August and late October, depending on how things fare at the Supreme Court.
Trump’s legal argument would “collapse our system of separated powers by placing the President beyond the reach of all three Branches,” the appeals judges 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.”
Trump has argued he’s given immunity by the Constitution’s Impeachment Judgment Clause, which suggests judgements in impeachment cases “shall not extend further than to removal from Office,” which the DOJ noted means, in Trump’s view, that “the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate.” Subjecting presidents to criminal charges would violate the separation of powers between government branches, Trump argued, insisting that impeachment and conviction by the Senate is the “exclusive method of proceeding against a president for crimes in office.” The ex-president has also claimed that opening former presidents up to prosecution would dissuade them from taking necessary actions while in office, and has argued presidents should be able to “cross the line” without being prosecuted.
The Supreme Court has ruled against Trump having legal immunity once before, finding in 2020 that the then-president had to comply with a grand jury subpoena for his tax returns. “No citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the court.
The DOJ argued Trump is not entitled to immunity from criminal charges, claiming in its appeal to the Supreme Court that “the Constitution’s text, structure, and history do not support that contention.” The DOJ argues Trump’s claims about impeachment being the only way to hold presidents accountable isn’t supported by history and “collapses under the application of common sense.” “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass,” prosecutors argued.
Trump was indicted on four felony charges for his efforts to overturn the 2020 election, one of four pending criminal cases against the ex-president and one of two cases involving the 2020 election, along with the Georgia case. The charges could result in prison time if Trump’s convicted. Trump’s appeal of the presidential immunity question threw a wrench into the federal election case, which prosecutors have tried to shepherd quickly to trial before the 2024 election. Chutkan paused all proceedings in the case after Trump appealed the judge’s order that shut down his motion to dismiss, and his March trial date was formally delayed indefinitely earlier in February. The DOJ asked the Supreme Court to take up the case swiftly before the appeals court could rule, in order to keep the proceedings more on schedule, but the high court refused the government’s request without any explanation.
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