With All of the Defenses of Any Other Criminal Defendant: AKA Trump Is Toast

After a month of waiting, the U.S. Court of Appeals hearing donald trump's claim of "absolute immunity" reached a verdict and dropped it this morning... right on top of trump's head like a 16-ton weight. Via Carrie Johnson at NPR:

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit has ruled that Donald Trump does not enjoy broad immunity from federal prosecution, a major legal setback for the former president, who said he will appeal.

They wrote that for the purposes of this criminal case, "former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant."

The ruling comes a month after lawyers for Trump made sweeping claims that he enjoyed immunity from federal prosecution, claims that lawyers for the special counsel said would "undermine democracy" and give presidents license to commit crimes while in the White House, such as accepting bribes for directing government contracts or selling nuclear secrets to a foreign adversary.

It would be "a striking paradox," the judges wrote, if the president, who alone has the constitutional duty to ensure that laws be faithfully executed, "were the sole officer capable of defying those laws with impunity."

Excuse me for a moment. (Runs around the room squeeing like it's another Fitzmas morning) Okay.

"We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter," the judges wrote. Doing so, they said, "would collapse our system of separated powers by placing the President beyond the reach of all three branches..."

As part of their ruling, the judges granted trump's team to file appeal up to the Supreme Court, but gave him a strict deadline of NEXT MONDAY, implying that they want this legal matter resolved quickly. Experts are pointing to the quick turnaround if SCOTUS hears the appeal that the highest court in the land would have to issue a ruling this summer at the latest, hopefully with trump facing his DC trial involving his efforts to undermine the 2020 election results well before 2024 Election Day.

If you want to read the ruling, the link to it is here.

Referring to Marcy Wheeler over at her Emptywheel blog, this is some of her takeaway from this ruling:

Let’s start with the last one, what I called posture. Judge Henderson had originally not favored an expedited review. This order forces Trump into an expedited appeals process.

The Clerk is directed to withhold issuance of the mandate through February 12, 2024. If, within that period, Appellant notifies the Clerk in writing that he has filed an application with the Supreme Court for a stay of the mandate pending the filing of a petition for a writ of certiorari, the Clerk is directed to withhold issuance of the mandate pending the Supreme Court’s final disposition of the application. The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.

The only way he can stop Judge Chutkan from issuing opinions on the remaining motions to dismiss filed last fall is if he immediately appeals to SCOTUS for a stay pending appeal, which he has already said he’d done. The only way he can get that stay is if five Justices say they think Trump will succeed on the merits and vote to grant the stay.

Steve Vladeck says that SCOTUS has a lot of options, but the two most likely are to deny the stay or to grant an appeal in this term, committing to an opinion by June...

Finally, I noted that Judge Henderson seemed to have concerns about the scope of their decision — what she described “floodgates” of follow-on charges. She at least considered the wisdom of limiting this opinion to a former President’s unofficial acts — in this case, defined as those of an office-seeker under Blassingame.

Rather than going Blassingame, though, the panel’s top line holding went Big.

The operative language in this opinion rejects the notion of Presidential immunity categorically as a violation of separation of powers.

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 their proper balance.” See Fitzgerald, 457 U.S. at 754...

Without any specific exemptions to relate, Wheeler is pointing out the appellate judges are leaving little wiggle room for the Supreme Court justices to give trump an escape route:

But they say if they did have to review whether the indictment charged Trump for official acts, the fact that so many of the alleged acts in the indictment pertain to Trump’s role as an office-seeker, and because Presidents have no role in election certifications, the indictment would survive that more particular review anyway.

This is the kind of out that Justice Kavanaugh took on a related issue, whether the interests of Congress in reviewing an attack on the election certification preempted any Executive Privilege claims.

That is, both the District and Circuit have already said that, if they were asked to consider whether this indictment withstands an immunity claim, it substantially would.

I have no idea what SCOTUS will do. But by producing a unanimous opinion with little surface area for Justices to grab hold, Judges Henderson, Pan, and Childs may have ended up producing the most expeditious result...

For myself, this is the key paragraph in the ruling (pg. 3) that underscores just how deep in trouble trump is:

Since then, hundreds of people who breached the Capitol on January 6, 2021, have been prosecuted and imprisoned. And on August 1, 2023, in Washington, D.C., former President Trump was charged in a four-count Indictment as a result of his actions challenging the election results and interfering with the sequence set forth in the Constitution for the transfer of power from one President to the next. Former President Trump moved to dismiss the Indictment and the district court denied his motion. Today, we affirm the denial. For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.

You can spot where the three judges are spelling out trump's culpability in the January 6th riots, by highlighting how the hundreds who rioted on his behalf have already faced justice themselves, and that trump is now due to face justice as well.

Best possible situation now is that the Supreme Court - lacking any legal loophole they can bring up in trump's defense - denies the appeal and lets the lower court ruling stand. They are well within their power to do so. They could still pick up this hot potato if they wanted to have the Highest Court In the Land put their imprint on the legal matter, but they would risk undermining the entire Constitution - destroying the checks and balances between the three branches - as the appellate court points out. And no matter what, they can't delay their ruling to save trump, as they're bound by the rules to get their decisions finalized by summer. Either they let trump run free - and destroy the rule of law altogether - or they let him face trial before the November elections.

Let justice be done. Let SCOTUS stand with the lower court ruling. Let trump face his day in federal court as soon as possible.

Preferably with a jury ruling on July 3rd so we can celebrate the next day with additional fervor.