Trump has no immunity from Jan. 6 prosecution, appeals court rules
Former President Donald Trump, with attorney John Lauro, left, and D. John Sauer, center right, speaks to reporters after attending a hearing of the D.C. Circuit Court of Appeals on Jan. 9. (Jabin Botsford/The Washington Post)
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 power that one judge feared could allow for political assassinations.
“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.
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.
That trial had been scheduled for March 4, one of four criminal prosecutions Trump faces while simultaneously campaigning to regain the White House. But it was delayed last week, while the appeals process on the immunity issue continued Trump remains the leading Republican candidate in the 2024 presidential election, having handily defeated his rivals in the Iowa caucuses and New Hampshire primary.
The Justice Department has long held that a current president cannot be prosecuted. But Trump raised the novel claim that former presidents cannot either, at least for actions related to their official duties, unless impeached and convicted by Congress first. Having been acquitted by the Senate of inciting the Jan. 6, 2021, insurrection, Trump said that to try him in federal court would be a double jeopardy violation.
Both assertions were viewed skeptically by legal scholars—several who served in Republican administrations wrote to the court that Trump’s position was “absurd”—and by the three appellate judges who heard the case. “I think it’s paradoxical to say that his constitutional duty to take care that the laws be faithfully executed allows him to violate criminal laws,” Karen L. Henderson, the lone Republican on the panel, said during arguments over the case in early January.
Asked at that hearing whether Trump’s view of presidential impunity could allow for the assassination of a political rival, defense attorney D. John Sauer did not disagree. He only suggested such an action would “speedily” result in impeachment.
During the hearing, Judge Florence Y. Pan said the impeachment exception undermined rather than strengthened Trump’s argument. By conceding that a former president could be charged after impeachment, she said, Trump was admitting that there is no absolute immunity and only quibbling about the process.
“Your separation of powers arguments fall away, your policy arguments fall away,” Pan said.
Sauer invoked his own hypothetical harms, suggesting a ruling against Trump would lead to “cycles of recrimination” in which every former president is charged with a crime. George W. Bush could be prosecuted for justifying the Iraq War with false intelligence, he said; Barack Obama could be prosecuted for drone strikes that killed civilians.
Trump himself was more explicit. Having already promised if reelected to use the Justice Department to “go after” Biden, he said after arguments in the D.C. Circuit that a ruling against him would mean “bedlam in the country.”
Justice Department attorney James Pearce told the appellate judges that while a future court might rule presidents have criminal immunity for some war-related decisions, that wasn’t relevant now. What Trump is accused of sets him apart from any other White House occupant, Pearce said: “Never before has 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.”
Trump’s impeachment claim relied on a single line in the Constitution saying that while Congress can only remove a person from office, “the party convicted shall nevertheless be liable and subject to indictment.” Trump argued that must mean the opposite is also true, as he put it in his filings: “A president who is not convicted may not be subject to criminal prosecution.” That reading, Judge Tanya S. Chutkan said in her ruling on the case, defies the “plain meaning” of the text, the “original understanding” of it based on historical records, and “common sense.”
It’s also in direct contradiction to what Trump contended at his impeachment trial in 2021, something multiple judges on the appellate panel emphasized. At the time, Trump’s lawyers argued that because he was already out of office any punishment for his actions should come from the criminal justice system rather than Congress. Several senators, including then-Majority Leader Mitch McConnell (R-Ky.), cited that reasoning in voting against impeachment.
Trump relied heavily on a 1982 case in which the Supreme Court ruled that presidents, current and former, should be immune from civil suits related to their White House work. But that court explicitly said its concern about “the distraction of suits by disappointed private citizens” did not apply to criminal prosecutions in which there is greater “public interest.” As Judge J. Michelle Childs noted during oral argument, after resigning the presidency Nixon received a pardon for any criminal activity he “committed or may have committed”—an acceptance that he could have been charged with a crime.
The D.C. Circuit ruling is not binding in any other jurisdiction where Trump is accused of a crime. He is making similar arguments in Georgia, where he is accused of interfering specifically in that state’s 2020 election. But in that case Trump is also arguing that the Constitution’s “supremacy clause” bars state prosecutors from indicting a former president. The special counsel has declined to address that issue, saying in court filings that “prosecution by a state or local entity would raise separate questions.” In New York state court and Florida federal court, he faces trial for actions that he took before or after his presidency.
