Trump has no immunity from Jan. 6 prosecution, appeals court rules
By Rachel Weiner
Updated February 6, 2024 at 10:24 a.m. EST|Published February 6, 2024 at 10:12 a.m. EST
A federal appeals court has unanimously ruled that Donald Trump can be put on trial for trying to stay in power after losing the 2020 election, rejecting Trump’s sweeping claim of presidential immunity and moving the case one step closer to a jury.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the panel of three judges wrote. “The interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.”
Trump has already indicated he plans to ask the full U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court to review the ruling. While his legal arguments keep failing in court, even rulings against him aid his goal of delaying any federal trial in D.C. until after the presidential election.
The court said it would put the ruling on hold until Feb. 12 for Trump to appeal to the Supreme Court but would not wait for the full D.C. Circuit to weigh in.
For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.
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We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term.8 We consider the policy concerns at issue in this case in two respects.
First, we assess possible intrusions on the authority and functions of the Executive Branch and the countervailing interests to be served as those concerns apply to former President Trump’s claim that former Presidents are categorically immune from federal prosecution. We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.
Second, we examine the additional interests raised by the nature of the charges in the Indictment: The Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President. We find these interests compel the conclusion that former President Trump is not immune from prosecution under the Indictment.
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Moreover, past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances, so the possibility of chilling executive action is already in effect. Even former President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction. E.g., Oral Arg. Tr. 13:25– 14:9. We presume that every President is aware of the Impeachment Judgment Clause and knows that he is “liable and subject to Indictment, Trial, Judgment and Punishment, according to Law,” at least after impeachment and conviction. U.S. CONST. art. I, § 3, cl. 7.
Additionally, recent historical evidence suggests that former Presidents, including President Trump, have not believed themselves to be wholly immune from criminal liability for official acts during their Presidency. President Gerald Ford issued a full pardon to former President Richard Nixon, which both former Presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment.
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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. 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.
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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. 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. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.
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To begin, former President Trump’s reliance on a negative implication is an immediate red flag: The Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause. See U.S. CONST. art. I, § 6, cl. 1. Yet they chose not to include a similar provision granting immunity to the President. See Vance, 140 S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the Constitution explicitly addresses the privileges of some federal officials, but it does not afford the President absolute immunity.”).
The Impeachment Judgment Clause merely states that “the Party convicted” shall nevertheless be subject to criminal prosecution. The text says nothing about non- convicted officials. Former President Trump’s reading rests on a logical fallacy: Stating that “if the President is convicted, he can be prosecuted,” does not necessarily mean that “if the President is not convicted, he cannot be prosecuted.” See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J., concurring) (explaining “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q”).
Another important clue is the Clause’s use of the word “nevertheless,” as in “the Party convicted shall nevertheless be liable.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added). The meaning of “neverthele’ss,” according to a contemporaneous 18th century dictionary, is “[n]otwithsta’nding that,” which in turn means “[w]ithout hindrance or obstruction from.” 2 Samuel Johnson, A Dictionary of the English Language 200, 216 (1773). The Impeachment Judgment Clause contains no words that limit criminal liability — and, to the contrary, it uses “nevertheless” to ensure that liability will not be limited (i.e., “hindered or obstructed”), even after an official is impeached, convicted and removed from office.
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Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons: (1) An impeachment does not result in criminal punishments; and (2) the Indictment does not charge the same offense as the single count in the Impeachment Resolution.
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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.
Dean Phillips (@deanbphillips) posted at 9:07 AM on Wed, Feb 07, 2024:
Serious question, @MalcolmNance:
Do you intend to discover why I ran for Congress after the 2016 disaster, and how we flipped a red seat blue for the first time since 1958 with a 26 point swing?
By August, I’ll support whomever the data shows is best positioned to defeat Trump.…
Malcolm Nance (@MalcolmNance) posted at 9:16 AM on Wed, Feb 07, 2024:
Perhaps you haven’t noticed I’m African-American? I can confidently say I will support the nominee … and that ain’t you. As a member of the most loyal base of the Democratic Party we black Americans will work harder than you to save your silly ass from tyranny & dictatorship ……
(https://x.com/MalcolmNance/status/1755249223069483161?t=TYeTlQMP6ZPfSNnM-JxGLg&s=03)
Lips so pursed.
Sawyer Hackett (@SawyerHackett) posted at 11:30 AM on Wed, Feb 07, 2024:
Speaker Mike Johnson blames the failed impeachment of Sec. Mayorkas on “people who show up when they’re not expected to be in the building.”
He’s referencing Rep. Al Green, who showed up in a wheelchair from surgery. https://t.co/XUEhOVpICq
(https://x.com/SawyerHackett/status/1755282975187452257?t=yUWjG9WaneuXEGeL5K7TRg&s=03)
I know that’s right 👍🏾👍🏾
That reporter was a clown for asking that question😒
Acyn (@Acyn) posted at 11:49 AM on Wed, Feb 07, 2024:
Jeffries: It’s not our responsibility to let House Republicans know which members will or will not be present on the House Floor https://t.co/sHxwhxe8BY
(https://x.com/Acyn/status/1755287744404951232?t=s0XJWrchEv-iTW1KmocCpQ&s=03)
Isabel Santos 🟧🟦🌊🌊🟦📙 (@Busyisaworkshop) posted at 10:04 AM on Wed, Feb 07, 2024:
Rep. Al Green of Texas is 74 years old and needed surgery. House Republicans scheduled the vote thinking he would not be able to attend. Al Green showed up in a wheelchair and scrubs. He deserves a standing ovation from ALL of us. Leave a 👏🏻 or 👏🏻👏🏻 or more if you agree👏🏻👏🏻👏🏻👏🏻👏🏻
(https://x.com/Busyisaworkshop/status/1755261273111945710?t=_5qtMNcX-xWBF_ATrbkQMw&s=03)
Leia🌻 (@TheSWPrincess) posted at 10:36 PM on Tue, Feb 06, 2024:
Congressman Al Green, D-Texas, was brought into the House Chamber in a wheelchair Tuesday afternoon, wearing hospital scrubs and socks, to cast his vote against impeaching Secretary Mayorkas, blocking the impeachment. HERO!
“I was determined to cast the vote long before – I had no idea how close it was going to be,” Mr. Green said in an interview on Tuesday night from his hospital bed, where he had returned shortly after voting. “I didn’t come assuming that my vote was going to make a difference. I came because it was personal.
I had to cast this vote because this is a good, decent man whose reputation should not be besmirched.”… https://t.co/2qTvOsGipo
(https://x.com/TheSWPrincess/status/1755088001875546127?t=TR1bzilEOV0fwvR4MWwU_g&s=03)
I bet their collection is superb.
TODAY (@TODAYshow) posted at 0:09 PM on Wed, Feb 07, 2024:
In a TODAY Exclusive, @aliciakeys and her husband @THEREALSWIZZZ give a first look at their new art exhibit called “Giants” at @brooklynmuseum that puts their private collection on display featuring the works of nearly 40 Black artists. https://t.co/F3CDZUcXoK
(https://x.com/TODAYshow/status/1755292698251079784?t=eIK_SbbK_jOYmHJWwylx7Q&s=03)
Especially the PRIMARIES.
It’s the PRIMARY where you can find what approaches to be your ‘perfect’ candidate’. They whine about the candidates in the General Election…then show up for the PRIMARY….That’s when you’re really supposed to show up…the PRIMARY determines who will be on the GENERAL ELECTION Ballot for your party.
Old Bones (@Frasier67Blank) posted at 1:27 PM on Wed, Feb 07, 2024:
80% of politics is showing up – If 18-29s dont even much brother with primaries, they dont get to complain
And to be POTUS, Speaker etc, you need experience
And that experience is invaluable – Pelosi was voted on as Speaker, Minority leader by her PEERS. They valued it
(https://x.com/Frasier67Blank/status/1755312297566674963?t=qTYuF9Rc65zN1DwolIRhFA&s=03)
I know that’s right.
Norman Ornstein (@NormOrnstein) posted at 1:02 PM on Wed, Feb 07, 2024:
It is impossible to overstate how awful and unethical is Aileen Cannon. Clearly has no business being a judge at any level.
(https://x.com/NormOrnstein/status/1755305963899510908?t=NN6ktn9sQNWXN62hi2NqrA&s=03)
Tim O’Brien (@TimOBrien) posted at 0:38 PM on Tue, Feb 06, 2024:
Of course Trump isn’t immune from the law. Never was and isn’t now. An appellate court just memorialized that fact — as the Supreme Court has before. Trump now faces a possible reckoning around the Jan. 6 insurrection. Expect him to lash out. My column:
https://t.co/izXVWiAIpW
(https://x.com/TimOBrien/status/1754937520393965835?t=bdDOHscHQpQUYsE2rcZacQ&s=03)
Neal Katyal (@neal_katyal) posted at 11:18 AM on Tue, Feb 06, 2024:
Even though it was a terrible legal argument, Absolute immunity was Trump’s last best hope. He has always been terrified of a criminal trial and all of these procedural moves have been about forestalling it. Now the ground shifts with a trial looking very likely.
(https://x.com/neal_katyal/status/1754917534560620891?s=03)
Comment from another blog about why the 6 day requirement is EVERYTHING:
WaterGirl
FEBRUARY 6, 2024 AT 10:56 AM
@OzarkHillbilly: That was my thought originally, too. Dot every I and cross every T. Make it airtight.
But about a week ago my sense of certainty on that vanished and I was fearing delay tactics from Judge Henderson.
To say I feel relieved to finally have this ruling – and to have it go the way we hoped for in every way – including and especially the “6 days to file an appeal AND have the SC agree to grant cert”.
Without that, the DC trial could have been delayed beyond the election.
So THAT 6-day response requirement is the WHOLE BALLGAME.
Garrett Haake (@GarrettHaake) posted at 9:44 AM on Tue, Feb 06, 2024:
Trump Jr with a window here on how MAGA world will approach immunity decision: appeal to SCOTUS, suggest prosecution will follow of Obama and/or Biden by a future Republican-controlled DOJ.
(https://x.com/GarrettHaake/status/1754893915767861533?t=x6PWP4Tou4i49YjCAD1J0w&s=03)
Kyle Griffin (@kylegriffin1) posted at 9:35 AM on Tue, Feb 06, 2024:
D.C. Circuit: “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. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not…
(https://x.com/kylegriffin1/status/1754891459902296320?t=a1gTUjjIZkZiPGoiEWZvoA&s=03)
Kyle Griffin (@kylegriffin1) posted at 9:25 AM on Tue, Feb 06, 2024:
From the unanimous decision:
“We reject all three potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular.”
(https://x.com/kylegriffin1/status/1754889013490512357?t=VbP1g9Jjo2s_tIWnQktQjg&s=03)
Michael Beschloss (@BeschlossDC) posted at 9:10 AM on Tue, Feb 06, 2024:
Unanimous ruling just now by D.C. Circuit: Trump is not immune from prosecution.
Forward march.
(https://x.com/BeschlossDC/status/1754885314206707891?t=8YFe0YhcOIcRimScQBaYEQ&s=03)
George Conway (@gtconway3d) posted at 9:16 AM on Tue, Feb 06, 2024:
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”… https://t.co/84hZV223PS
(https://x.com/gtconway3d/status/1754886898005283106?t=M9MohCAMUoDJ1Uvw3gnweA&s=03)
Chuck Throckmorton (@ChuckThrock) posted at 9:41 AM on Tue, Feb 06, 2024:
Now we know why they took so long. A meticulous analysis, addressing all of Trump’s arguments and forcefully and persuasively demonstrating why the intuitively correct answer —- presidents cannot have absolute immunity — is also beyond doubt the correct legal answer,…
(https://x.com/ChuckThrock/status/1754893090840547401?t=vJgazpn7r7LhT762Q0oRaw&s=03)
Jon Herold (@patel_patriot) posted at 9:12 AM on Tue, Feb 06, 2024:
DC Circuit court affirms Judge Chutkan’s decision to deny Donald Trump’s claims of immunity.
Supreme Court, here we come! https://t.co/NFtVooXkUy
(https://x.com/patel_patriot/status/1754885840629641631?t=1CYk6Q9a_EfUaHlvEoPheA&s=03)
Adam Klasfeld (@KlasfeldReports) posted at 9:18 AM on Tue, Feb 06, 2024:
This was a three-judge D.C. Circuit panel — appointed by presidents from both sides of the aisle — articulating the stakes of this criminal case, in one voice in a unanimous, unsigned opinion. https://t.co/40HkmZmeFm https://t.co/Wljjuz9Kuk
(https://x.com/KlasfeldReports/status/1754887258560192939?t=AoyItvTwAL0BxgCd7J22rg&s=03)
JM Rieger (@RiegerReport) posted at 9:12 AM on Tue, Feb 06, 2024:
“A federal appeals court has unanimously ruled that Trump can be put on trial for trying to stay in power after losing the 2020 election, rejecting Trump’s sweeping claim of presidential power that one judge feared could allow for political assassinations” https://t.co/f4Y4LcL1QV
(https://x.com/RiegerReport/status/1754885860472881360?t=v2gOq9SSzA9W2zEyn_uWKg&s=03)
Mueller, She Wrote (@MuellerSheWrote) posted at 9:40 AM on Tue, Feb 06, 2024:
This is excellent news. The DC court will PROCEED Monday unless trump asks for and SCOTUS issues a stay.
(https://x.com/MuellerSheWrote/status/1754892915623780381?t=4h4UPYKihiXRbmfVJHiEpg&s=03)
MSNBC (@MSNBC) posted at 9:35 AM on Tue, Feb 06, 2024:
WATCH: This unanimous decision from a three-judge panel of the DC Circuit rejects all three arguments that Trump made in favor of his claimed immunity. @lawofruby provides context. https://t.co/hoJ9YR6LSG
(https://x.com/MSNBC/status/1754891514314965068?t=tB1-QZeLLnYzkA9LJ7YsVg&s=03)