WASHINGTON (CN) — A D.C. Circuit panel rejected Donald Trump’s theory that his time in the White House grants him immunity from criminal prosecution in a unanimous ruling on Tuesday.
Trump will likely appeal the decision, setting up a second set of arguments before either the full bench of the D.C. Circuit Court of Appeals or the Supreme Court.
"For the purpose of this case, former President Trump has become citizen Trump, with all the defenses of any other criminal defendant," wrote the panel in the court's opinion. "But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution."
The Supreme Court, with a 6-3 conservative majority, had already rejected a request in December by special counsel Jack Smith to leapfrog the D.C. Circuit and hear Trump’s absolute immunity claim.
Trump had argued that as a former president, he should be immune from criminal liability the same way former presidents are immune from civil liability for official actions taken while in office.
The theory was an expansion of a Supreme Court precedent set in Nixon v. Fitzgerald, where Richard Nixon was deemed immune from an employment lawsuit.
The appellate panel, made up of U.S. Circuit judges Karen Henderson, Florence Pan and Michelle Childs clarified that the high court had been “careful to note that its holdings on civil liability do not carry over to criminal prosecutions,” in the Nixon v. Fitzgerald case.
Trump was making a three-pronged argument that the president is effectively untouchable: The separation of powers doctrine does not grant courts the power to review presidential acts; the executive branch requires immunity to prevent intrusion on executive functions; and a former president can only be criminally liable if he has first been impeached and convicted by Congress.
In rejecting the first piece of his argument, the panel rejected Trump’s reading of the foundational Marbury v. Madison, finding that the separation of powers doctrine specifically permits the Judiciary to “oversee the federal criminal prosecution … because the fact of the prosecution means that the former president has acted in defiance of the Congress’s laws.”
Further, Trump cannot claim that such review would inhibit future presidents from taking action, because the interest in criminal accountability for his actions is so great both for the public and the executive branch itself.
Trump has argued that by not granting him complete immunity, the court could “open the floodgates” for future presidents facing politically motivated prosecutions once they leave office — echoing the way he has regularly characterized the four criminal cases against him.
“The risks of chilling presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history, and ‘too remote and shadowy to shape the course of justice,'” the panel said, soundly rejecting Trump’s concerns.
In a statement, Trump campaign spokesman Steven Cheung decried the decision, warning that the ruling opens the door to future presidents being targeted by the opposing party immediately after leaving office.
“Without complete immunity, a president of the United States would not be able to properly function,” Cheung said in the emailed statement. “President Trump respectfully disagrees with the D.C. Circuit’s decision and will appeal it in order to safeguard the presidency and the Constitution.”
At oral arguments Jan. 9, the three-judge panel made up of U.S. Circuit judges Karen Henderson, Florence Pan and Michelle Childs, was skeptical of Trump’s claim that any action within the “outer perimeter” of the president’s duties could not lead to later prosecution.
Pan, a Joe Biden appointee, asked John Sauer, Trump’s appellate attorney of the firm James Otis, whether a president who sold pardons to business associates, military secrets to a foreign adversary or ordered Seal Team 6 to assassinate a political rival — all actions within a president’s duties — could be prosecuted for those crimes.
“My answer is a qualified yes,” Sauer responded.
Considering the extensive powers vested in the president, Sauer’s position would “collapse our system of separated powers by placing the president beyond the reach of all three branches,” the panel said.
“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,” the panel wrote.
Sauer said the only way presidents could be criminally charged was if they had first been impeached and convicted by Congress. The fact that Trump had been acquitted by the Senate during his second impeachment proceeding for his role in the Jan. 6, 2021, attack on the U.S. Capitol meant he could not be charged again, Sauer argued.
The panel similarly rejected such an argument in their opinion, finding it a misreading of the impeachment clause and saying that had the framers wanted to grant such an immunity, they would have said so explicitly.
While the panel’s decision moves the appeal closer to a final decision, Trump’s Washington trial, originally scheduled to begin March 4, 2024, has since been postponed, with no new trial date scheduled.
U.S. District Judge Tanya Chutkan, the Barack Obama appointee overseeing the now-paused case in federal court, hinted that she might give Trump additional time to prepare for trial.
In an order rejecting a Trump request to hold Smith in contempt for continuing to file motions in the case, she indicated she would adjust the case’s schedule once his appeal has run its course — assuming the Supreme Court also rejects Trump’s theory and remands the case back to Chutkan.
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