A federal appeals court has ruled that Donald Trump does not have “immunity” from prosecution for crimes committed while he was in office – landing another major blow to his efforts to evade criminal charges for his attempts to overturn the 2020 presidential election.
His attorneys are expected to swiftly appeal the decision to the full bench of appeals court judges, or all the way up to the US Supreme Court, teeing up another major constitutional test involving Mr Trump’s campaign at the nation’s highest court.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” judges with the US District Court of Appeals in Washington DC wrote on Tuesday. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
Last year’s federal grand jury indictment outlines a multi-state scheme from Mr Trump and his allies to overturn the 2020 election, culminating in his failure to stop a mob’s violent breach of the US Capitol on 6 January. He faces four criminal charges, including conspiracy and obstruction.
In December, US District Judge Tanya Chutkan rejected his motion to dismiss the case on “immunity” grounds, writing in a 48-page ruling that his four-year term “did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens”.
The office of the presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass”, nor do former presidents enjoy any special consideration after leaving office, when they are “subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office,” Judge Chutkan wrote.
On 2 February, with progress in the election conspiracy case effectively stalled for two months pending Mr Trump’s immunity appeals, Judge Chutkan confirmed that a penciled-in 4 March trial date was no longer on the calendar.
Special counsel Jack Smith’s office previously warned judges and the Supreme Court that the former president’s delays could push a trial timeline further into the election year, opening the possibility of courts deciding whether to try Mr Trump as a president-elect or a sitting president.
“This case involves – for the first time in our nation’s history – criminal charges against a former president based on his actions while in office,” lawyers with Mr Smith’s office wrote last year.
“[Mr Trump] stands accused of serious crimes because the grand jury followed the facts and applied the law,” they added. “The government seeks this court’s resolution of the immunity claim so that those charges may be promptly resolved, whatever the result.”
Supreme Court justices are already scheduled to consider another major constitutional question of whether he can be disqualified from public office under the scope of the 14th Amendment, which prohibits anyone who has sworn an oath to uphold the constitution and “engaged in insurrection or rebellion” from holding public office.
The court will hear oral arguments in that case on 8 February.
In their opinion on Tuesday, appeals court judges wrote that Mr Trump’s arguments to extend his “immunity” from criminal prosecution for alleged crimes committed while in office “would have us extend the framework for presidential civil immunity to criminal cases and decide for the first time that a former president is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility”.
Mr Trump has argued that the court lacks authority to review his “official” acts under the separation of powers doctrine, and that prosecuting such actions would severely constrain the executive branch. He has also argued that he shouldn’t be prosecuted because he was acquitted in the US Senate on charges that are parallel to the scheme outlined in his criminal indictment.
Appeals court judges categorically rejected all three defences.
“Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government,” they wrote.
They refused to accept his claim that a president has “unbounded authority to commit crimes that would neutralise the most fundamental check on executive power – the recognition and implementation of election results”, as well as his “carte blanche” efforts “to violate the rights of individual citizens to vote and to have their votes count”.
Otherwise, his position would “collapse” a system of checks and balances and place the presidency entirely outside the bounds of courts and Congress, they wrote. “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
Judges also affirmed that a president can be “criminally prosecuted in federal court, without any requirement that he first be impeached and convicted for the same conduct”.
In an all-caps post on his Truth Social account on Monday night, Mr Trump claimed that without immunity, “every president that leaves office will be immediately indicted by the opposing party”.
Trump campaign spokesperson Steven Cheung echoed Mr Trump’s remark in a statement after Tuesday’s ruling.
He called Mr Smith “deranged” and the prosecution against Mr Trump “unconstitutional” and a “threat” to the “bedrock of our Republic”.
“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the presidency and the constitution,” he said.
The former president called the appeals court decision “nation-destroying” and repeated his baseless allegation that his multiple criminal indictments are a “political weapon” directed by President Joe Biden against him.
“If not overturned, as it should be, this decision would terribly injure not only the Presidency, but the Life, Breath, and Success of our Country,” he wrote on his Truth Social.
“A President will be afraid to act for fear of the opposite Party’s Vicious Retribution after leaving Office. I know from personal experience because I am going through it right now. It will become a Political Weapon used for Election Interference. Even our Elections will be corrupted and under siege. So bad, and so dangerous for our Nation. SAVE PRESIDENTIAL IMMUNITY!”