You’ll be happy to know that the D.C. Circuit doesn’t believe that the President of the United States can order an assassination of his political rival and get away with it. Who knew, huh?
In a unanimous, 57-page opinion, the three-judge panel that heard Trump’s claim of “absolute” immunity from prosecution dispensed with each of his arguments one by one. As we lawyers say, he got benchslapped pretty badly (again).
To recap: Trump attempted to claim absolute immunity from criminal prosecution based on a Nixon-era case which held that Presidents are immune from civil liability for acts that fall within the “outer perimeter” of their official duties. Trump argued that the same principle should apply in the criminal context, and that not having such immunity would open the floodgates to former presidents being prosecuted all over the place. Trump also argued that 1) under the Impeachment Clause of the Constitution, he cannot be criminally prosecuted since he was not impeached AND convicted for his conduct, and 2) because he was impeached, prosecuting him for the same conduct would amount to double jeopardy, which is prohibited under the Fifth Amendment.
Soooooo….let’s break down the court’s opinion:
Jurisdiction
I’m not going to lie, this part of the opinion, which concerned whether the court even had the power to hear the case, made my eyes glaze over. The basic issue here was whether Trump’s claim of immunity was something that could be appealed immediately after the district court’s ruling — known as an interlocutory appeal — or whether it was the kind of claim that had to be raised after trial. Typically, interlocutory appeals are disfavored in the criminal context. For instance, let’s say a defendant objects to certain evidence being admitted at his trial, but the judge allows it anyway. The trial goes on, and then the defendant can appeal that ruling if he is convicted and argue that it violated his due process or Fourth Amendment rights or whatever.
However, exceptions are made when the issue involves the “right not to be tried.” The reasoning here is that if you wait until after the trial is over, then there is really no way to vindicate or correct the violation of that right. The right not to be tried includes things like the prohibition on double jeopardy, or the Speech and Debate Clause of the Constitution, which prohibits members of Congress from being prosecuted for their official (lawful) legislative acts. The problem is that unlike these immunities, there is no “explicit” constitutional or statutory text concerning the President, and a prior Supreme Court case called Midland Asphalt seemed to intimate that this was required.
The circuit court basically said that didn’t matter here because the President is sui generis — in a class of his own, as far as defendants go — and that even an implicit claim of immunity could be a basis for an interlocutory appeal. This is because, the court says, it would be “unseemly” to make a former POTUS go through a whole trial before deciding on the issue. The court also found that Trump’s Impeachment Clause theories were close enough to the kinds of explicit immunities (like double jeopardy and congressional immunity) that could be raised before trial. The big takeaway here is that the court proceeded to rule on the merits (see below), which is really good because it forces Trump’s claim to be settled ahead of time. (The alternative would have been for Trump to go to trial, be convicted, and then have it be appealed and potentially dismissed later.)
Structural and Functional Arguments Against Immunity
OK, so with the jurisdictional question out of the way, the court then turns to the substance of Trump’s immunity claim, and basically first analyzes whether it makes sense from a structural analysis, and then from a functional analysis. A structural analysis looks at the checks-and-balances design of the Constitution and whether Trump’s claim would make sense in that overall design. A functional analysis looks at the practical and policy effects of Trump’s argument, and whether it would impede the actual efficacy of our government. Trump failed on both fronts.
On the structural side, the court looked at the separation of powers among the branches, and the extent to which the other branches may or may not constrain the president. The panel first distinguished between “discretionary” and “ministerial” acts. Discretionary acts are ones within the president’s exclusive domain and are judicially unreviewable (the court doesn’t use this example but one might be, for instance, negotiations with foreign heads of state). Ministerial acts are ones in which the President must act within the bounds determined by Congress — the big example the court gives here is the Court’s smackdown in 1952 of President Truman’s attempt to seize steel mills during the Korean War, after Congress refused to pass legislation giving him authority to do so. The court then determined that general criminal laws apply to the President (you don’t say!) and that when he acts in defiance of those laws, he may be prosecuted, just as judges and legislators may be prosecuted for committing crimes in the course of their duties (we’re looking at you, Senator Menendez!).
On the functional side, the court considered Trump’s argument that not granting immunity would open the floodgates of criminal prosecution against former presidents and make him too scared to do anything in office out of fear of future criminal liability. The court observed that the prospect of a sudden avalanche of criminal prosecutions against former Presidents is unlikely, given the high bar for prosecutors to bring cases and due process hurdles, like indictment by a grand jury. The court was also like, P.S. my dude, every President has known they could be criminally indicted if they break the law — the court here notes that President Nixon was given a pardon under precisely this understanding, and that President Clinton relinquished his law license and paid a fine in exchange for not being criminally prosecuted. Any “chilling effect” on the presidency, therefore, has been in effect for a while, and Trump actually being prosecuted doesn’t change that. (In fact, the court notes, the prospect of criminal liability “might serve as a structural benefit to deter abuses of power and criminal behavior.”)
On the other side, the court noted the strong public interest in criminal accountability, as well as voters’ interest in being able to select their President through democratic means. But one other interest, to me, was the most insightful: The court noted that the Executive Branch has an interest in upholding elections and ensuring that its power vests in the newly and duly elected President. This is really important, because it is making clear that there is not only an institutional interest that exists separate and apart from the interest of the person occupying its office, but also that in Trump’s case, they were diametrically opposed to one another.
The court sums it up nicely on page 40:
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 the proper balance.”
BOOM.
Impeachment Clause and Double Jeopardy
The panel dispenses with these claims pretty easily, looking at the historical backdrop and plain reading of the Impeachment Clause. The “irrational ‘impeachment first’ constraint” (that’s a quote from the opinion) was the basis upon which, you may recall, Trump’s lawyer argued that a President could order Seal Team Six to assassinate his political rival and be immune from accountability unless he was impeached and convicted for it. So no surprise that the panel wasn’t having any of this nonsense. The main highlights and takeaways here, in my opinion, are the following:
First, the court notes that this whole argument undercuts the claim of “absolute” immunity. After all, if there are even some limited conditions under which a President could be prosecuted it’s not…absolute. Not surprising that Team Trump failed Logic 101 here, since the court also notes that Trump’s reading of the Impeachment Clause was based on a logical fallacy.
My favorite part: The panel quotes Trump’s own argument in his impeachment trial that criminal prosecution was the only appropriate remedy for his conduct, as well as Mitch McConnell, who said during impeachment that “We have no power to convict and disqualify a former office holder who is now a private citizen” (with a footnote naming 30 other Republican senators) to highlight that this leaves a huge gap where a President could potentially commit crimes with impunity. (For example, crimes not “readily categorized as impeachable” or discovered after he leaves office).
On the double jeopardy front, the court notes that impeachment only carries political consequences, so it does not violate the Fifth Amendment’s proscription that “no person shall…be twice put in jeopardy of life or limb,” which refers to criminal punishments. I wish the court had left it there. Instead, it went on to also observe that the crime for which he was impeached, incitement of insurrection, is different from the crimes for which he has been charged (conspiracy and obstruction). The reason this worries me is that, if the Supreme Court somehow rules that Trump needs a criminal conviction to be disqualified under the Fourteenth Amendment, the court’s reasoning undercuts the argument that his charged crimes cover conduct constituting “insurrection” and therefore meet that bar. I personally think the political/criminal distinction would have sufficed to reject this claim.
So that’s the quick and dirty version of the opinion. The circuit court stayed the district court’s ruling until February 12 to give time for Trump to file an appeal with the Supreme Court. Bookmark this summary, since if the Court grants certiorari and agrees the hear an appeal on the merits, Trump will reprise these same arguments. Hopefully, the Court will recognize a solid opinion when they see one and just send Trump back to court to stand trial.
I'm personally delighted the court was thoughtful enough to confirm on page 44 something we discussed here after Judge Chutkin's initial ruling, about the logical fallacy in Trump's argument about the impeachment clause. Namely that what Chutkin calls "denying the antecedent" - the notion that "if the President is impeached and convicted he can still be prosecuted" means "if the President is not impeached and convicted he can't be prosecuted" - is in fact another name for the the "fallacy of the inverse" ("the incorrect assumption that if P implies Q, then not-P implies not-Q"). Logic 101 nerds rejoice!
I’ve downloaded the actual document but thanks to you I may skip straight to page 40! Thank you for taking your precious time to sort this all out for us.