A federal appeals court in Washington, reaching back in constitutional history to 1803, ruled unanimously on Tuesday that former President Donald Trump is not immune to criminal prosecution for his role in trying to stay in office in 2021 after his defeat in 2020.
Since that outcome was not a surprise, given the unprecedented sweep of Trump’s claim, a significant meaning of the decision by the three-judge panel was that it started the running of a brief schedule that will test Trump’s ability to put off going to trial in criminal court.
The panel gave Trump’s lawyers just six days to ask the Supreme Court to put the panel’s decision on hold. That would seem to require the Justices to act quickly to avoid significant delays of a trial of Trump in Washington, D.C., on four criminal charges arising out of the January 6, 2021, attack on the Capitol and Trump’s attempt to undo Joe Biden’s victory in the 2020 election.
The starting date for the Washington trial has been uncertain as the judge in charge of that case, U.S. District Judge Tanya S. Chutkan, waited for the appeals court panel to rule on the immunity question. If the Supreme Court now acts quickly on the postponement question, Judge Chutkan could schedule a fairly prompt start of the trial in her court. It was previously set to start March 4, but the judge cancelled that date while the appeals court took additional time to make its ruling.
It will take the votes of five Justices to put the panel’s decision on hold, pending possible Supreme Court review of an appeal by Trump hoping to revive the immunity plea. If the Justices do not impose a delay, that would put the appeals court decision into immediate effect, and Judge Chutkan could then set a new trial starting date. If the Justices do impose a delay, that could be a sign that they are going to grant full review of the immunity question, and that could result in a significant delay of the trial in Judge Chutkan’s court.
Trump’s lawyers have been attempting, in all four of the criminal cases he faces, to put off trials until after the election in November. If he were to win the election, he could then attempt to scuttle at least the federal cases against him. One of the four cases he is confronting is a state case in Georgia, and Tuesday’s ruling by the appeals court in Washington expressly took no position on whether he would be immune to state charges; Trump is claiming immunity to state charges, too.
Trump, on his social media platform, “Truth Social,” called the federal appeals court ruling “nation-destroying” and said he would appeal to the Supreme Court.
The immunity controversy is separate from the ongoing dispute over whether Trump is constitutionally disqualified from again seeking the Presidency, under the 14th Amendment ban on office-holding by those who engage in “insurrection” or “rebellion.” The Justices will hold a hearing on that dispute Thursday morning.
The appeals court panel issued its ruling Tuesday under “Per Curiam” authorship (Latin for “by the court”), an indication that all three judges had worked together to produce the one, 57-page opinion. The panel included a senior Circuit Judge, Karen LeCraft Henderson, and two fairly new Circuit Judges, J. Michelle Childs and Florence Y. Pan.
The opinion was weighted heavily with history, reaching back to what is, by almost all standards, the Supreme Court’s most famous decision: the 1803 ruling in Marbury v. Madison. That ruling, written by then-Chief Justice John Marshall, established the power of the Court to rule on the constitutionality of acts of Congress – a doctrine that fit into the Founders’ concept of checks and balances. The panel relied on that precedent for the concept that, while the President is immune for acts that were solely a matter of discretion or choice, immunity does not extend to violations of laws that impose specific duties on the occupant of that office. The courts, the panel said, “may review the President’s actions when he is bound by law, including by federal criminal statutes.”
Trump’s immunity plea is basically keyed to a claim that, since the four charges against him in the January 6 Capitol attack case all involve actions that he took while still President, the constitutional doctrine of separate of powers immunizes him from prosecution on criminal charges.
Out of that foundation argument, Trump’s lawyers made specific claims: (1) that the courts have no authority to review official actions taken by a President while in office, (2) that prosecution of a President for official actions will intrude on the functioning of the entire Executive Branch, and (3) that under the Constitution’s provisions for presidential impeachment, the fact that Trump was acquitted of impeachment charges by the Senate means that he cannot be charged later with a crime for similar official actions. A variation on the third point was that it would be a kind of “double jeopardy” for Trump to face criminal charges arising out of the January 6 attack after he was subjected to impeachment for that same conduct.
The panel judges wrote at length in rejecting all facets of the immunity plea. A total of 40 pages of the 57-page opinion discussed the reasons for rejecting immunity, which the panel described as having never been claimed by any prior President.
In its final conclusion, the panel wrote: “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter….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.”
Trump does have the option of asking the full 11-member appeals court in Washington to reconsider the panel decision, but the panel issued an order saying that such a request would not delay the effective operation of the panel decision in the meantime, unless the full court did step in. It seems unlikely that a majority of the 11 judges will vote for review by the full court.