Appeals court deals Trump a loss in presidential immunity claim, as his attorneys buy time

A federal appeals panel unanimously rejected former President Donald Trump’s immunity claims Tuesday — ruling he can stand trial on charges he illegally plotted to overturn the 2020 presidential election.

In a 57-page decision, the three judges on the DC US Circuit Court of Appeals concluded that Trump, 77, does not enjoy complete immunity from prosecution.

“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 court wrote.

Trump’s legal team had pitched two main arguments to the court; first, that the former president could not be charged because his 2020 election machinations pertained to his official duties.

The judges rejected that claim, finding: “Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”

“Legislators and judges are absolutely immune from civil suits for any official conduct, and legislators have an explicit constitutional immunity from criminal prosecution arising from the [constitutional] Speech or Debate Clause,” they added. “Nevertheless, legislators and judges can be criminally prosecuted under generally applicable laws for their official acts consistent with the separation of powers doctrine.”

“Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government,” the judges continued. “He allegedly injected himself into a process in which the President has no role.”

The second argument held that Trump’s impeachment by the House of Representatives following the Jan. 6, 2021, Capitol riot meant that the current prosecution led by special counsel Jack Smith amounted to double jeopardy. 

The judges again rejected that argument, finding that “Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. 

“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.”

“Former President Trump’s reliance on the Double Jeopardy Clause is misplaced. Impeachment is not a criminal process and cannot result in criminal punishment,” the panel found. 

“[Trump] does not seriously contend otherwise, and he does not explain why he believes that impeachment can implicate ‘double jeopardy principles’ when it does not involve criminal punishment.”

DC federal Judge Tanya Chutkan, who is overseeing Smith’s case against Trump, previously rejected the former president’s immunity argument in December, which triggered the appeal. 

Chutkan put proceedings in the case on pause last year and postponed the scheduled March 4 trial start date last week due to the appeal. 

Separately, Trump’s legal team is also trying to make the presidential immunity defense in his 13-count indictment alleging 2020 election tampering out of Fulton County, Ga.

“If immunity is not granted to a President, every future President who leaves office will be immediately indicted by the opposing party,” Trump campaign spokesman Steven Cheung said in a statement after the ruling.

“Prosecuting a President for official acts violates the Constitution and threatens the bedrock of our Republic. President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution.”

Trump later went a step further in a melodramatic post on Truth Social.

“A President of the United States must have Full Immunity in order to properly function and do what has to be done for the good of our Country,” he wrote. “A Nation-destroying ruling like this cannot be allowed to stand. If not overturned, as it should be, this decision would terribly injure not only the Presidency, but the Life, Breath, and Success of our Country.”

“A President will be afraid to act for fear of the opposite Party’s Vicious Retribution after leaving Office,” he added. “It will become a Political Weapon used for Election Interference.”

The former president has until Monday to ask for a stay while the case is appealed to the Supreme Court.

Prosecutors have fretted that Trump’s legal team is seeking to delay the trial start date until after the general election Nov. 5.

During oral arguments last month, the panelists voiced deep skepticism at the immunity argument, with Judge Florence Pan, a Biden appointee, grilling Trump’s legal team on the extent of the claim.

“Could a president who ordered SEAL Team 6 to assassinate a political rival (and is) not impeached, would he be subject to criminal prosecution?” she asked at one point.

“If he were impeached and convicted first,” Trump lawyer John Sauer answered as Trump himself looked on.

“So your answer is no,” Pan said, to which Sauer responded: “My answer is a qualified yes.”