Trump is not immune from prosecution in his 2020 election interference case, US appeals court says

Trump is seeking to delay a trial until after the November election. If he were to defeat President Joe Biden, he could presumably try to use his position as head of the executive branch to order a new attorney general to dismiss the federal cases he faces or potentially could seek a pardon for himself.

WASHINGTON (AP) — A federal appeals panel ruled Tuesday that Donald Trump can face trial on charges that he plotted to overturn the results of the 2020 election, sharply rejecting the former president’s claims that he is immune from prosecution while setting the stage for additional challenges that could further delay the case.

The ruling is significant not only for its stark repudiation of Trump’s novel immunity claims but also because it breathes life back into a landmark prosecution that had been effectively frozen for weeks as the court considered the appeal.

Yet the one-month gap between when the court heard arguments and issued its ruling has already created uncertainty about the timing of a trial in a calendar-jammed election year, with the judge overseeing the case last week canceling the initial March 4 date.

Trump’s team vowed to appeal, which could postpones the case by weeks or months — particularly if the Supreme Court agrees to take it up. The judges gave Trump a week to ask the Supreme Court to get involved.

The eventual trial date carries enormous political ramifications, with special counsel Jack Smith’s team hoping to prosecute Trump this year and the Republican front-runner seeking to delay it until after the November election. If Trump were to defeat President Joe Biden, he could presumably try to use his position as head of the executive branch to order a new attorney general to dismiss the federal cases he faces or potentially could seek a pardon for himself.

Tuesday’s unanimous ruling is the second time since December that judges have held that Trump can be prosecuted for actions undertaken while in the White House and in the run-up to Jan. 6, 2021, when a mob of his supporters stormed the US Capitol. The opinion, which had been expected given the skepticism with which the panel greeted the Trump team’s arguments, was unsparing in its repudiation of Trump’s claim that former presidents enjoy absolute immunity for acts that fall within their official job duties.

“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,” the judges wrote.

They said 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,” and they rejected Trump’s claim that a president could have “unbounded authority to commit crimes” that would prevent the recognition of election results.

“Nor,” they wrote, “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.”

A Trump spokesman said Tuesday that Trump would appeal the ruling “in order to safeguard the Presidency and the Constitution.”

The US Court of Appeals for the District of Columbia Circuit took center stage in the immunity dispute after the Supreme Court in December said it was at least temporarily staying out, rejecting a request from Smith’s team to take up the matter quickly and issue a speedy ruling. But the high court could yet decide to act on a Trump appeal.

There is no timetable for the Supreme Court to act, but the justices are likely to seek Smith’s input before deciding whether to keep the legal rulings against the former president on hold. If the court refuses Trump’s plea for a stay, US District Judge Tanya Chutkan will be able to restart the trial proceedings.

If on the other hand the Supreme Court accedes to Trump’s request, any timetable it establishes would determine how much longer the trial might be delayed.

If the court grants Trump’s request without speeding up the appeals process, Trump would have until early May before he even needs to file his full appeal. But the justices could set much quicker deadlines for reaching a final decision.

The Supreme Court has held that presidents are immune from civil liability for official acts, and Trump’s lawyers have for months argued that that protection should be extended to criminal prosecution as well.

They said the actions Trump was accused of in his failed bid to cling to power after he lost the 2020 election, including badgering his vice president to refuse to certify the results of the election, all fell within the “outer perimeters” of a president’s official acts.

But Smith’s team has said that no such immunity exists in the US Constitution or in prior cases and that, in any event, Trump’s actions weren’t part of his official duties.

Chutkan, who is presiding over the case, rejected Trump’s arguments in a December opinion that said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Trump’s lawyers then turned to the D.C. appeals court, but Smith asked the Supreme Court to weigh in first, in hopes of securing a fast and definitive ruling and preserving the March 4 trial date. The high court declined the request, leaving the matter with the appeals court.

The case was argued before Judges Florence Pan and J. Michelle Childs, appointees of Biden, a Democrat, and Karen LeCraft Henderson, who was named to the bench by President George H.W. Bush, a Republican.

The judges made clear their skepticism of Trump’s claims during arguments last month, when they peppered his lawyer with questions and posed a series of extreme hypotheticals to test his legal theory of immunity — including whether a president who directed Navy commandos to assassinate a political rival could be prosecuted.

Trump’s lawyer, D. John Sauer, answered yes — but only if a president had first been impeached and convicted by Congress. That view was in keeping with the team’s position that the Constitution did not permit the prosecution of ex-presidents who had been impeached but then acquitted, like Trump.

The case in Washington is one of four prosecutions Trump faces as he seeks to reclaim the White House. He faces federal charges in Florida that he illegally retained classified documents at his Mar-a-Lago estate, a case that was also brought by Smith and is set for trial in May.

He’s also charged in state court in Georgia with scheming to subvert that state’s 2020 election and in New York in connection with hush money payments made to porn actor Stormy Daniels. He has denied any wrongdoing.