Appeals Court Rejects Trump’s Immunity Claim
Ruling by three-judge panel tees up possible further appeals to entire circuit or Supreme Court
WSJ
WASHINGTON—A federal appeals court rejected Donald Trump’s claim that he is immune from prosecution on charges he plotted to overturn the 2020 election, handing the former president an expected defeat that he suggested he would contest at the Supreme Court.
A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit dismissed Trump’s arguments that his efforts during the final months of his presidency to undo his loss, including by promoting false claims of voter fraud, fell within the ambit of his official duties. That was a crucial tenet of Trump’s defense.
Before any appeal to the Supreme Court, Trump could first seek to have the decision reviewed by the entire circuit court. Any further appeals would increase the chances of delaying the former president’s trial. The presiding judge has postponed the trial indefinitely while the immunity battle continues.
Trump, the Republican front-runner, is facing four criminal indictments. It is unclear how many of those cases may see jury trials during this election year. He has a prohibitive lead in the polls, secured in part by capitalizing on his criminal jeopardy and casting himself as the target of politicized prosecutions.
The three-member appellate panel was made up of Judge Karen L. Henderson, a George H.W. Bush appointee, and Judges Florence Y. Pan and J. Michelle Childs, both named to the court by President Biden. The D.C. Circuit panel signaled strong skepticism toward Trump’s immunity claim during oral arguments on Jan. 9.
At that hearing, Trump lawyer D. John Sauer urged the judges to toss the case, arguing that a former president cannot face criminal prosecution for “official acts” unless first impeached by the House and convicted by the Senate.
He also said ruling against immunity in Trump’s case would hamper future presidents. “If a president has to look over his shoulder or her shoulder every time he or she has to make a controversial decision…that inevitably dampens the ability of the president,” he said.
A Washington federal appeals court rejected Donald Trump’s claim that he is immune from prosecution on charges he plotted to overturn the 2020 election. Photo: Susan Walsh/Associated Press
Special counsel Jack Smith’s team, which brought the federal charges, argued that Trump’s efforts to reverse the election results, which prosecutors say led to the Jan. 6, 2021, attack on the U.S. Capitol, were criminal and didn’t constitute official acts that would be covered by presidential immunity.
“Never before have there been allegations that a sitting president has, with private individuals and using the levers of power, sought to fundamentally subvert the democratic republic and the electoral system,” James Pearce, one of Smith’s lawyers, said in court. “And, frankly, if that kind of fact pattern arises again, I think it would be awfully scary if there weren’t some sort of mechanism to reach that criminally.”
Trump’s legal team has highlighted a 1982 decision involving former President Richard Nixon, in which the Supreme Court held that presidents enjoy absolute immunity from civil lawsuits related to their official acts. Smith’s team has pointed to Nixon’s acceptance of a pardon amid the Watergate scandal in 1974 as reflecting the “consensus view” that a former president can face prosecution after leaving office.
If Trump appeals the ruling to the Supreme Court, it would bring to three the number of cases tied directly to Trump the justices would rule on before July. The high court is considering the former president’s appeal of Colorado’s landmark ruling that he is an insurrectionist and unfit for public office. And in December the justices said they would consider whether prosecutors exceeded the scope of federal obstruction laws in hundreds of criminal cases relating to the Capitol attack, and in Smith’s case against Trump.
For the special counsel, the question of Trump’s immunity from criminal charges was only the latest piece of business before the D.C. Circuit. In a separate legal challenge pitting Smith’s team against the former president, another D.C. Circuit panel largely upheld a gag order barring him from publicly attacking federal prosecutors, court staff and potential witnesses in his election-interference case. But in its December decision, the panel narrowed the limited gag order to allow Trump to publicly criticize Smith himself.
In another appeal raised through the investigation resulting in Trump’s indictment, Twitter challenged a nondisclosure order that prevented it from notifying Trump of a search warrant for information related to his account on the social-media site, now known as X. An appeals panel last year rejected Twitter’s arguments, including a claim that the nondisclosure order violated the First Amendment.
