A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected former President Donald Trump’s claim that he has presidential immunity in the D.C. election interference case.
As Professor Jacobson has stressed many times: “Attempting to overturn an election, in and of itself, is not a crime. The way in which it is done could be a crime, but the crime alleged is the end result of overturning the election.”
The vote was 3-0. Not shocking at all:
Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. 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.
A federal grand jury indicted Trump on four counts for allegedly interfering with the election and inciting the Capitol Hill riot:
Trump filed a motion to dismiss because he has presidential immunity in October. At the time, Trump claimed:
To ensure the President may serve unhesitatingly, without fear that his political opponents may one day prosecute him for decisions they dislike, the law provides absolute immunity “for acts within the ‘outer perimeter’ of [the President’s] official responsibility.” Nixon v. Fitzgerald 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion)).Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the “outer perimeter,” but at the heart of his official responsibilities as President. In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties. Instead, the prosecution falsely claims that President Trump’s motives were impure— that he purportedly “knew” that the widespread reports of fraud and election irregularities were untrue but sought to address them anyway. But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide. Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution…. Therefore, the Court should dismiss the indictment, with prejudice.
The district court wrote that Trump’s claim of presidential immunity is “unsupported by precedent, history or the text and structure of the Constitution.”
But the judges argued that giving Trump immunity would undermine the Constitution:
Former President 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. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress. To immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.”
No one probably wants my opinion, but I will give it anyway because I don’t like holding back.
I’ll go back to what Professor Jacobson said about attempting to overturn an election: “The way in which it is done could be a crime, but the crime alleged is the end result of overturning the election.”
Maybe the district court could not find any case law or support in the Constitution because Trump didn’t do anything criminally or unconstitutional.
These courts are setting dangerous precedents with many of these cases against Trump.
I also do not blame Justice Sotomayor for complaining about the workload thrown at SCOTUS. People are relying on them for everything.
Anyway.
The mandate will not be issued through February 12, giving Trump time to appeal.
So, Trump’s trial will still likely not start on March 4.
Trump will likely appeal, but he could ask the entire circuit court to review the decision before taking it to SCOTUS.
I can see Trump taking that route since it would further delay the trial.
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