WASHINGTON – Former President Donald Trump can be prosecuted on charges that he plotted to overturn the 2020 election, a three-judge panel of a federal appeals court ruled Tuesday, rejecting Trump’s argument that he is immune from criminal prosecution for any conduct he is accused of while in office.
In a unanimous opinionthe panel of the DC Circuit Court of Appeals disputed Trump’s request to drop the federal lawsuit accusing him of lying to and encouraging his supporters who turned violent on January 6, 2021.
Trump and his lawyers argued that the lawsuit should be dismissed because Trump was acting in his official capacity as president and allowing a president to be sued would have catastrophic consequences.
The Court found that these arguments were “not supported by precedent, history, or the text and structure of the Constitution.”
The stakes of this dispute are exceptionally high, they wrote, because of the nature of the allegations against Trump: The former president is accused of attempting to undermine a fundamental principle of American democracy.
“We cannot accept former President Trump’s claim that a president has unfettered authority to commit crimes that would neutralize the most fundamental check on executive power – the recognition and implementation of election results,” they wrote.
A Trump campaign spokesman said Tuesday that the former president will appeal the ruling, which could further delay Trump’s trial as he continues his campaign as a front-runner for the Republican presidential nomination.
“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it to protect his presidency and the Constitution,” campaign spokesman Steven Cheung said. He did not specify whether the appeal would go to the U.S. Supreme Court or the full circuit court.
The DC switch panel set a deadline for Monday for a statement of reasons for appeal.
The panel consisted of judges appointed by the leaders of both parties.
Republican former President George HW Bush appointed Karen LeCraft Henderson. Florence Y. Pan and J. Michelle Childs were appointed by President Joe Biden, a Democrat who is likely to run against Trump in November’s presidential election.
Nixon’s pardon quoted
The judges wrote that it has long been clear that former presidents could be prosecuted.
President Gerald Ford pardoned his predecessor Richard Nixon, which both sides understood as protection against Nixon from criminal charges in connection with the Watergate scandal, the judges explained.
It is also in line with the constitution, they wrote.
“It would be a glaring paradox if the President, who alone bears the constitutional duty to ‘see that the laws are faithfully executed,’ were the only official who could disregard those laws with impunity,” they wrote, citing the Constitution.
They rejected Trump’s argument that allowing criminal prosecutions would open the door to harassment of former presidents by the opposing political party, saying this was not the case with the 44 presidents before Trump.
“We conclude that the public and executive branch interest in criminal prosecution outweighs the potential risks associated with curbing presidential actions and allowing harassing litigation,” they wrote.
And in the Trump case, the nature of the allegations – which represented an “unprecedented attack on the structure of our government” – provided even greater reason to allow criminal charges, the judges wrote.
A Charges in four counts accused Trump last year Conspiracy to overthrow the 2020 presidential election.
The indictment accuses Trump of working with a group of co-conspirators to recruit false electoral slates, lie to the public about nonexistent election fraud, and encourage supporters to obstruct election certification during a violent attack on the Capitol on January 6, 2021.
Accepting Trump’s immunity argument would give the president “carte blanche to violate individual citizens’ right to vote and the right to cast a vote.”
Trump’s claim to total immunity would remove the president from the reach of all three branches of government, they wrote.
“We cannot accept that the office of the President should forever place its former holders above the law,” they wrote.
Henderson, Pan and Childs gave a foretaste of their skepticism about the executive’s immunity claims during Oral hearing in early January in the presence of Trump in the courtroom in Washington, DC
Notably, during tough questioning, Trump’s attorney D. John Sauer appeared to argue that presidents could be immune from criminal prosecution even if they ordered the assassination of political rivals.
Tuesday’s appeal decision makes no statement on the merits of the underlying federal lawsuit against Trump, which accuses him of influencing the election.
Fred Wertheimer, president of the government accountability group Democracy 21, called the case “the most important pending criminal case against former President Trump.”
Further legal remedies
The DC Circuit’s order set a Monday deadline for filing an appeal to the U.S. Supreme Court. That appeal would maintain a stay of preliminary hearings that has been on hold since Trump appealed a ruling on his immunity claims in December.
The court is not required to accept the appeal, but exercising its appeal options will support Trump delay the case, possibly beyond Election Day. Trump and his legal team have not explicitly stated that delaying the case as long as possible is part of their strategy, but have taken advantage of opportunities to delay proceedings.
Trump could also appeal to the full DC Circuit, but the court rarely grants such requests, and the panel said Tuesday that simply asking for a rehearing would not delay the trial date.
The Supreme Court is also “unlikely” to accept an appeal, say legal experts Norman L. Eisen, Matthew A. Seligman and Joshua Kolb. wrote an outline on possible timelines in this case for Just Security, a website dedicated to the analysis of foreign policy, democracy and security, published on January 9.
Trump invoked his immunity in court, where he faces federal charges related to the 2021 attack on the Capitol, saying he could not be prosecuted for the acts alleged in the indictment because he acted in his official capacity as president to counter election fraud and because he had already been acquitted in an impeachment trial.
U.S. District Judge Tanya S. Chutkan disputed these claims, a decision Trump challenged before the DC Circuit. On Friday, Chutkan also said his trial was officially postponedwhich was scheduled to begin on March 4.
A few hours before the three-judge panel announced its ruling, Trump posted in capital letters on his online platform Truth Social: “IF A PRESIDENT IS NOT GRANTED IMMUNITY, ANY PRESIDENT WHO LEAVES OFFICE WILL IMMEDIATELY BE IMPEACHED BY THE OPPOSING PARTY.”
“WITHOUT FULL IMMUNITY, A PRESIDENT OF THE UNITED STATES WOULD BE UNABLE TO FUNCTION HIS DISTRICT COURT!” he wrote.
Reaction rolls out
Several anti-Trump groups celebrated the verdict on Tuesday, while Republicans in the Capitol launched a recent initiative to defend the former president with a House resolution.
American Oversight, an organization that advocates for public access to U.S. government securities and filed an amicus curiae brief in the case, released a statement praising the appeals judges for “strongly rejecting Trump’s claim that a president can commit crimes with impunity and avoid prosecution unless he is first impeached and convicted by Congress.”
“We appreciate the court’s careful consideration of our argument that Trump’s appeal was premature. By fully addressing the argument, the court has eliminated the risk that this issue could be raised for the first time in subsequent appeals, including to the Supreme Court, causing even more delays. Today’s important ruling affirms a fundamental principle of our democracy – no one is above the law,” Heather Sawyer, executive director of American Oversight, continued in the statement.
Wertheimer noted that Trump has used delaying tactics in litigation throughout his career and that “his efforts in this case are part of his oft-used strategy.”
“Trump’s goal is to delay this criminal trial until after the 2024 presidential election. If he wins the election, he can then order his new attorney general to drop the case,” he wrote.
He urged the Supreme Court to decide quickly on any further appeal.
The Defend Democracy Project, an advocacy group that promotes election integrity, said the appeals court’s ruling “validated the Constitution and common sense. Trump can and will be prosecuted.”
“A fundamental principle of American democracy is that the law applies equally to everyone, even to a president. Anyone who tries to take away our freedom to choose our own leaders must be held accountable,” the organization said in a statement after the verdict.
During a press conference previously scheduled for Tuesday to announce a resolution absolving Trump of any actions on January 6, 2021, far-right Republicans in the House of Representatives condemned any scrutiny of the former president.
Lauren Boebert of Colorado said the numerous pending criminal cases against Trump amounted to a “witch hunt.”
“This is absolutely unprecedented, and the woke mob, fake news and left-wing government officials who are participating in this blackmail should be deeply ashamed. All of the fabricated cases against President Trump are election interference, pure and simple (in the 2024 election),” said Boebert, who signed the resolution from Florida Republican Matt Gaetz.
Trump is also facing charges in three other cases.
The state election interference charges in Georgia make similar allegations to the federal indictment. The state charges in New York accuse him of falsifying business records by making unauthorized hush money payments from campaign accounts. And a federal grand jury in Florida accused him of mishandling classified documents.
None of the cases have reached the negotiation stage as Trump continues to work toward a third Republican presidential nomination.
Editor’s note: This story has been updated with additional information and reactions.
