Former President Trump can’t lean on his expired credentials to avoid criminal charges for his attempt to stay in the White House after losing the 2020 election, a federal appellate court ruled on Tuesday—stripping him of any alleged presidential immunity.
“For the purpose of this criminal case, former President Trump has become citizen Trump,” the D.C. appellate court ruled, noting that “any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
The historic decision puts Trump on a direct path to the Supreme Court, which is expected to ultimately decide whether Department of Justice Special Counsel Jack Smith can put the former president on trial—and potentially ruin his 2024 campaign by branding him a convicted felon.
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D.C. Circuit Judges J. Michelle Childs, Karen L. Henderson, and Florence Y. Pan wrote the decision after hearing arguments last month, including one Trump team theory that stunned them: The idea that presidents are afforded such unbelievable, sweeping power that they could get away with ordering a SEAL team to kill a political rival.
In their Tuesday decision, the appellate judges went further than simply knocking down Trump’s bid to claim this near-limitless immunity. They also established a clear and direct relationship between Trump and the insurrection.
“The rally headlined by President Trump resulted in a march of thousands to the Capitol and the violent breach of the Capitol Building,” they wrote, noting that “Trump’s efforts to overturn the election results were unsuccessful.”
The 2024 Trump campaign immediately vowed to appeal the decision, reiterating his legal team’s argument that exposing Trump to criminal charges will clear the way for future prosecutions.
“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function! Deranged Jack Smith’s prosecution of President Trump for his Presidential, official acts is unconstitutional under the doctrine of Presidential Immunity and the Separation of Powers,” campaign spokesman Steven Cheung said in his statement.
U.S. District Judge Tanya Chutkan previously rejected Trump’s immunity claims, sparking the current appeal. The appellate panel affirmed Judge Chutkan’s Dec. 1 ruling that "former presidents enjoy no special conditions on their federal criminal liability.”
However, Trump can still claim some sort of victory in that this appeal has already slowed down the case. Chutkan had initially set the trial to start March 4, the day before the important “Super Tuesday” presidential primary elections in more than a dozen key states across the country. But the specious claims laid out by Trump’s legal team put the case on hold as it makes its way through the nation’s higher courts.
Days ago, Chutkan took steps that make clear she no longer thinks the trial will take place as soon as she’d hoped, scheduling other matters in March.
While the Supreme Court will ultimately decide the fate of the case, Tuesday’s ruling lays the groundwork for a decision that could leave Trump vulnerable to being the first ever former American president to end up in prison—and possibly bankrupt.
Trump is facing four criminal charges in the D.C. case for his involvement in a concerted effort to lie to the American public about the 2020 election results, a scheme that sought to interrupt the congressional certification of electoral ballots on Jan. 6, 2021, that would cement the victory of President Joe Biden. But he’s also facing multiple civil lawsuits for his role in leading and inspiring the attack on the Capitol by thousands of his MAGA supporters—one that cost the lives of five police officers who died after defending the seat of Congress from the raging mob.
The appellate judges reiterated the established legal precedent that an American president is “absolutely immune from civil liability for his official acts,” a notion that Trump’s legal team is trying to use as an impenetrable shield against the indictment and civil lawsuits. But as the DOJ itself has noted in a legal memo last year, Trump’s decision to urge his followers to attack Congress fell far outside of the scope of his official duties.
In today’s decision, appellate judges noted that “both sitting and former presidents remain civilly liable for private conduct.” And they even tore away the shield Trump keeps trying to wield, writing that “the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”
That puts into question whether Trump can even claim that his meddling in state elections in 2020 was part of his day job and thus protects him from the D.C. criminal indictment.
Childs, Henderson, and Pan poured cold water over the whole idea, simultaneously knocking down Trump’s argument that this criminal case could somehow echo into the future by exposing future presidents to indictments and prosecutions that will distract them from doing their primary job: leading the nation and protecting its people.
“We conclude that the interest in criminal accountability, held by both the public and the executive branch, outweighs the potential risks of chilling presidential action and permitting vexatious litigation,” they wrote.
The appellate judges stressed that past presidents have tacitly acknowledged that they can be held accountable, evidenced by the fact that President Gerald Ford in 1974 saw it fit to pardon his predecessor, Richard Nixon—something that “both former presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment.”
The landmark court decisions in Nixon’s Watergate scandal have played a pivotal role in Trump’s current legal woes, solidifying longtime comparisons between the 1970s political crook and the billionaire real estate tycoon whose entire presidency was mired in ethics scandals.
While Trump’s defense strategy rests on the idea that his role as the nation’s leader afforded him unfettered power to do whatever he deemed necessary, appellate judges asserted there are clear boundaries that even a president must respect.
“It would be a striking paradox if the president, who alone is vested with the constitutional duty to ‘take care that the laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” they wrote. “Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new president.”
The case is headed to a Supreme Court that was packed by Trump himself, with three conservative justices he appointed, whose brief time on the nation’s highest court has already ushered in a wave of rulings that have toed the Republican party line—rejecting women’s abortion rights and stopping Biden from wiping out $400 billion in federal student loan debt. But this case will test whether their political inclinations extend to a loyalty to Trump.
To deliver Trump a victory in this case would require the conservative supermajority on the Supreme Court to hand overwhelming power to the office of a president—no matter who’s at the White House. And they would have to reject the D.C. appellate judges’ reasoning on Tuesday that this kind of unchecked freedom poses a danger to the country, opening the doors to a future dictatorship.
“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power—the recognition and implementation of election results. Nor can we sanction his apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count,” they wrote.
