Trump’s Absolute Immunity Claim Was Rejected
For a moment, it was as if a new green shoot popped out of the frozen ground. The feeling likely won’t last, but there it was, a moment where reason and sanity seemed to prevail in Washington.
In a 57-page opinion, The U.S. Court of Appeals thoughtfully but decidedly and unanimously tossed any notion that a president, former president, or presidential candidate can do whatever he likes with total immunity from criminal responsibility.
Without regard to Donald Trump guilt, the court cited legal chapter and verse ranging from the 1803 Marbury v. Madison case to the Richard Nixon era and decided that each of several legal claims from Trump was unsupported and should be thrown out.
Apart from Trump’s claims, it was a win for an American democracy that holds that even the powerful must be accountable to law.
Trump will now have to face trial — or more hearings — on charges in four criminal cases, including two involving events leading to the Jan. 6 attempts to circumvent congressional certification of 2020 Electoral College votes for president.
Overall, however, the possibilities that Trump could appeal this decision further, either to the appeals court’s full bank of judges or to the Supreme Court, still looms. While it is doubtful that Team Trump can win a reversal, he can chew up time before any criminal trial gets underway, and bring him closer to a possible November win, when, as president, he promises he would order a halt to all legal proceedings against him.
Two Cases, Two Courts
Coincidentally, or not, the decision arrived just as the Supreme Court is to hear tomorrow Trump’s appeal of the Colorado Supreme Court decision that decided that his name should be removed from that state’s primary ballot — in accordance with a reading of the 14th Amendment barring those who have engaged in insurrection or aided insurrectionists from taking office.
Colorado’s top court found that the amendment did apply to Trump’s “office,” and that he had engaged in insurrection over months.
Together, these appellate claims about Trump’s would-be, post-White House shield from accountability for anything he did as president, have drawn an enormous number of legal “amicus” briefs in support of one side or the other — and the courtroom has become an extension of the electioneering platforms for the Trump election campaign.
To voters without access to the legal debate, there are competing philosophies emerging that opposing proponents each insist that their position represents the American value set. For Trump, it is a claim that as president and former president, he can do as he likes, even in violation of law, under the seal of a one-time presidency. To everyone else, equality before the law is a bedrock principle, including former presidents.
The two cases are separate, arising from separate circumstances, civil and criminal, but to the public, there’s a blur. Either you believe Trump is being universally hounded or you believe that he is using every legal trick he can muster to avoid accountability for having schemed and plotted election reversals through courts, campaigns, defamatory remarks, creation of illegal electoral slates and culminating in a violent Capitol insurrection attempt that had deaths and injuries.
Depending on partisan point of view, you are willing to turn equality before the law and American democracy upside-down to win on facts and law that support the outcome you favor.
Appeals Could Be Futile
Personally, I’m betting that the Supremes won’t want to review the immunity claims decision — in part because the court shies from what can be perceived as outright partisan, and, in part because the three-judge appeals panel decision was constructed on legal precedents and arguments that leave few new arguments about presidential immunity from criminal responsibility.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the judges wrote in the key sentences. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
Moreover, the judges shredded Trump’s multiple alternative arguments that ranged from “double jeopardy” from impeachment and criminal adjudication, from whether impeachment was the sole avenue for presidential responsibility, for whether other presidents might face criminal charges for in-office policy decisions, separation of powers arguments, among others.
It wasn’t a single argument that failed, it was all of them.
“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,” the court said.