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Appeals Court Finds Trump Not Immune To Prosecution in DC Election Subversion Case
Appeals Court Finds Trump Not Immune To Prosecution in DC Election Subversion Case
No. 23-3228
v.
DONALD J. TRUMP,
APPELLANT
Paul M. Dorsey, pro se, was on the brief for amicus curiae
Paul M. Dorsey in support of appellant.
Victor Williams, pro se, was on the brief for amicus curiae
Law Professor Victor Williams in support of appellant.
1
Former President Trump’s campaign and his supporters also
unsuccessfully challenged the election results in several state and
federal courts.
5
Indictment charges that he and his co-conspirators allegedly
advanced their goal through five primary means:
2
Off. of the Att’y Gen., “Appointment of John L. Smith as
Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).
8
Jeopardy Clause; (3) statutory grounds; and (4) allegations of
selective and vindictive prosecution.
3
Former President Trump does not challenge the district court’s
other holdings at this stage: (1) that “the First Amendment does not
protect speech that is used as an instrument of a crime, and
consequently the indictment — which charges [Trump] with, among
other things, making statements in furtherance of a crime — does not
violate [Trump]’s First Amendment rights,” Trump, --- F. Supp. 3d
---, 2023 WL 8359833, at *15, and (2) that the Indictment does not
violate Due Process because Trump “had fair notice that his conduct
might be unlawful,” id. at *22.
9
government’s motion to expedite the appeal, and oral argument
was held on January 9, 2024.
II. JURISDICTION
4
Elsewhere, Digital Equipment refers to rights “originating in
the Constitution or statutes.” 511 U.S. at 879. Its broader
formulation comfortably encompasses implicit as well as explicit
immunities.
14
Shimari, 679 F.3d at 246 (Wilkinson, J., dissenting) (calling
Midland Asphalt’s sentence “dictum” and a “lonely line”).
5
By contrast, the Supreme Court has explained why a right
against trial must ordinarily be “statutory or constitutional” in nature
to fall within the collateral-order doctrine. Midland Asphalt, 489
U.S. at 801. Whether a right can be effectively reviewed after final
judgment “simply cannot be answered without a judgment about the
15
certainly did not provide one. The ultimate source of our
appellate jurisdiction is 28 U.S.C. § 1291, which extends to the
“final decision[]” of the district court. There is no basis in the
statutory text to treat the denial of an explicit immunity as final
but the denial of an implicit immunity as non-final. In both
cases, the “deprivation of the right not to be tried” would be
“effectively unreviewable on appeal from a final judgment.”
Midland Asphalt, 489 U.S. at 800–01 (quotation omitted).
Whether explicit or implicit in the Constitution, the right not to
stand trial must be “vindicated before trial” or not at all. Id. at
799 (quotation omitted).
B. CIRCUIT PRECEDENT
United States v. Lee, 106 U.S. 196, 220 (1882). “That principle
applies, of course, to a President.” Vance, 140 S. Ct. at 2432
(Kavanaugh, J., concurring).
6
The Court’s reference to “the State statute” is to the Virginia
law charging the county judge with the duty to select jurors in the
circuit and county courts. Ex parte Virginia, 100 U.S. at 340.
28
More recent case law on the judicial immunity doctrine
affirms that judges are not immune from criminal liability for
their official acts. O’Shea v. Littleton confirmed the holding of
Ex parte Virginia in dismissing a civil rights action for
equitable relief brought against a county magistrate and
associate judge of a county circuit. 414 U.S. 488, 490–91, 503
(1974). The Supreme Court concluded that the requested
injunction was not the only available remedy because both
judges remained answerable to the federal criminal laws:
7
In his brief, former President Trump contends otherwise,
primarily relying on two words in a single line of dictum from
Spalding v. Vilas to urge that judges are immune from criminal
prosecution for their official acts. Appellant’s Br. 19. Spalding was
a civil case in which the Supreme Court quoted an opinion of the
Supreme Court of New York: “The doctrine which holds a judge
exempt from a civil suit or indictment for any act done or omitted to
be done by him, sitting as judge, has a deep root in the common law.”
Spalding v. Vilas, 161 U.S. 483, 494 (1896) (quoting Yates v.
Lansing, 5 Johns. 282, 291 (N.Y. Sup. Ct. 1810)) (emphasis added).
The Supreme Court did not analyze the scope of judicial criminal
immunity itself and the quoted New York language is flatly
incompatible with the Supreme Court case law addressed supra. We
do not consider Spalding’s dictum binding on the question of judicial
criminal immunity.
30
Blackstone and other early common law sources expressly
contemplated the criminal prosecution of judges on bribery
charges. See 4 WILLIAM BLACKSTONE, COMMENTARIES *139;
Perrin v. United States, 444 U.S. 37, 43 (1979). But this shows
only that judicial immunity did not stretch to shield judges from
generally applicable criminal laws, not that bribery was ever
considered a nonofficial act. And as explained supra, the
Supreme Court emphasized the official nature of the bribery
allegations in Dennis while reinforcing the judge’s criminal
liability.
8
We do not address policy considerations implicated in the
prosecution of a sitting President or in a state prosecution of a
President, sitting or former.
32
1. CATEGORICAL IMMUNITY DEFENSE
9
Federalist No. 51 is “generally attributed to Madison” but is
“sometimes attributed to ‘Hamilton or Madison.’” INS v. Chadha,
462 U.S. 919, 950 (1983).
40
Executive power has the advantage of
concentration in a single head in whose choice
the whole Nation has a part, making him the
focus of public hopes and expectations. In
drama, magnitude and finality his decisions so
far overshadow any others that almost alone he
fills the public eye and ear. No other personality
in public life can begin to compete with him in
access to the public mind through modern
methods of communications. By his prestige as
head of state and his influence upon public
opinion he exerts a leverage upon those who are
supposed to check and balance his power which
often cancels their effectiveness.
* * *
10
Former President Trump also cites to Hamilton’s statement
in Federalist 77 that the President is “at all times liable to
impeachment, trial, dismission from office, incapacity to serve in any
other, and to forfeiture of life and estate by subsequent prosecution
in the common course of law.” The Federalist No. 77, at 378–79
(Alexander Hamilton) (Coventry House Publishing, 2015) (emphasis
added). This argument is similarly unavailing based on Federalist
77’s analogous use of “liable.”
47
Federalist No. 69, at 337–38. It strains credulity that Hamilton
would have endorsed a reading of the Impeachment Judgment
Clause that shields Presidents from all criminal accountability
unless they are first impeached and convicted by the Congress.
11
Former President Trump points to some historical evidence
that he considers countervailing. He notes that some state
constitutions explicitly provided for the criminal prosecution of a
party acquitted on impeachment charges, arguing that silence on that
point therefore should be inferred as precluding prosecution. But
some early state constitutions also expressly granted criminal
immunity to the state’s chief executive, so interpreting silence is not
so simple. See Saikrishna Bangalore Prakash, Prosecuting and
Punishing Our Presidents, 100 Tex. L. Rev. 55, 69–70 (2021) (citing
1776 Virginia and Delaware constitutions). Any limited, indirect
historical clues must be weighed against the compelling textual,
structural and historical evidence that the Founders did not intend the
Impeachment Judgment Clause to bar the criminal prosecution of an
official who was impeached and acquitted (or not impeached at all).
49
unless the Congress first impeached and convicted them. No
court has previously imposed such an irrational “impeachment
first” constraint on the criminal prosecution of federal officials.
See, e.g., Isaacs, 493 F.2d at 1144 (“[W]e are convinced that a
federal judge is subject to indictment and trial before
impeachment . . . .”).12 Even if there is an atextual basis for
treating Presidents differently from subordinate government
officials, as former President Trump suggests, his proposed
interpretation still would leave a President free to commit all
manner of crimes with impunity, so long as he is not impeached
and convicted. Former President Trump’s interpretation also
would permit the commission of crimes not readily categorized
as impeachable (i.e., as “Treason, Bribery, or other high Crimes
and Misdemeanors”) and, if thirty Senators are correct, crimes
not discovered until after a President leaves office. See U.S.
CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily
ed. Feb. 13, 2021) (statement of Senate Minority Leader
McConnell) (“We have no power to convict and disqualify a
former office holder who is now a private citizen.”).13 All of
12
Indeed, history reveals examples of prosecutions preceding
impeachments. See Nixon v. United States, 506 U.S. 224, 226–27
(1993) (defendant judge criminally prosecuted and then impeached);
Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989)
(same); Amenability of the President, Vice President and other Civil
Officers to Federal Criminal Prosecution While in Office, Op.
O.L.C. 4 (1973) (observing that, as of 1973, only 12 impeachments
had occurred, but “presumably scores, if not hundreds, of officers of
the United States have been subject to criminal proceedings for
offenses for which they could have been impeached”).
13
See also statements of Senators Barrasso, Blunt, Braun,
Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley,
Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis,
Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune,
Tillis, Tuberville and Wicker.
50
this leads us to conclude that, under the best reading of the
Impeachment Judgment Clause, a former President may be
criminally prosecuted in federal court, without any requirement
that he first be impeached and convicted for the same
conduct.14
14
Because we conclude that former President Trump is not
entitled to categorical immunity from criminal liability for assertedly
“official” acts, it is unnecessary to explore whether executive
immunity, if it applied here, would encompass his expansive
definition of “official acts.” Nevertheless, we observe that his
position appears to conflict with our recent decision in Blassingame,
87 F.4th at 1. According to the former President, any actions he took
in his role as President should be considered “official,” including all
the conduct alleged in the Indictment. Appellant’s Br. 41–42. But
in Blassingame, taking the plaintiff’s allegations as true, we held that
a President’s “actions constituting re-election campaign activity” are
not “official” and can form the basis for civil liability. 87 F.4th at
17. In other words, if a President who is running for re-election acts
“as office-seeker, not office-holder,” he is not immune even from
civil suits. Id. at 4 (emphasis in original). Because the President has
no official role in the certification of the Electoral College vote,
much of the misconduct alleged in the Indictment reasonably can be
viewed as that of an office-seeker — including allegedly organizing
alternative slates of electors and attempting to pressure the Vice
President and Members of the Congress to accept those electors in
the certification proceeding. It is thus doubtful that “all five types of
conduct alleged in the indictment constitute official acts.”
Appellant’s Br. 42.
51
House of Representatives for the same or closely related
conduct but acquitted by the Senate. We disagree.
15
When determining whether a punishment labeled “civil” by
the Congress is criminal for double-jeopardy purposes, courts apply
a multi-factored test. See Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69 (1963). Because former President Trump does not
contend impeachment threatens criminal punishment, and because
we think the political nature of impeachment makes that clear, we
need not address those factors. Cf. OLC Double Jeopardy Memo at
139–48 (concluding, under the Mendoza-Martinez test, that removal
55
He 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.
B. BLOCKBURGER TEST
* * *
57
We have balanced former President Trump’s asserted
interests in executive immunity against the vital public interests
that favor allowing this prosecution to proceed. We conclude
that “[c]oncerns of public policy, especially as illuminated by
our history and the structure of our government” compel the
rejection of his claim of immunity in this case. See Fitzgerald,
457 U.S. at 747–48. We also have considered his contention
that he is entitled to categorical immunity from criminal
liability for any assertedly “official” action that he took as
President — a contention that is unsupported by precedent,
history or the text and structure of the Constitution. Finally,
we are unpersuaded by his argument that this prosecution is
barred by “double jeopardy principles.” Accordingly, the order
of the district court is AFFIRMED.16
So ordered.
16
Amici former Attorney General Edwin Meese III and others
argue that the appointment of Special Counsel Smith is invalid
because (1) no statute authorizes the position Smith occupies and (2)
the Special Counsel is a principal officer who must be nominated by
the President and confirmed by the Senate. See U.S. CONST. art. II,
§ 2, cl. 2 (Appointments Clause). On appeal from a collateral order,
we generally lack jurisdiction to consider issues that do not
independently satisfy the collateral order doctrine unless we can
exercise pendent jurisdiction over the issue. See Abney, 431 U.S. at
663; Azima v. RAK Inv. Auth., 926 F.3d 870, 874 (D.C. Cir. 2019).
Because the Appointments Clause issue was neither presented to nor
decided by the district court, there is no order on the issue that could
even arguably constitute a collateral order for us to review.
Additionally, the exercise of pendent jurisdiction would be improper
here, assuming without deciding that pendent jurisdiction is ever
available in criminal appeals. See Abney, 431 U.S. at 663; Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir.
1996).