After a month of chewing it over, the DC Circuit took a sledgehammer to Donald Trump’s magical perpetual immunity arguments this morning, sending his election interference case back to the trial judge unless the Supreme Court jumps in to save his streaky bacon.“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,” the panel declared in a 57-page per curiam opinion. “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 ruling is hardly surprising in light of the beatdown Trump’s lawyer D. John Sauer took on January 9 from Judges Karen LeCraft Henderson, Michelle Childs and particularly Judge Florence Pan, who forced him to concede that his argument meant that a sitting president could dispatch SEAL Team 6 to murder his political opponent — a political act that is also a crime — and evade prosecution if Congress failed to impeach and convict him.Having reductio-ed himself ad absurdum, the only two serious issues remaining were: 1) jurisdictional, with Judge Childs concerned that there was no right to an interlocutory appeal on the immunity issue; and 2) how to assuage Judge Henderson’s fear of opening the “floodgates” to prosecution for official acts when the president leaves office.Potential lack of jurisdiction was raised in an amicus brief, and neither side wanted to toss the interlocutory appeal. But in deference to Judge Childs, the ruling explains that the judicially created doctrine of executive immunity is akin to judicial and legislative immunity, and thus entails a right to avoid the burdens of a trial via immediate appeal. And the judges were unmoved by Sauer shouting Marbury v. Madison over and over and claiming that allowing executive action to be “examinable by the courts” would unleash a wave of political persecution.“Former President Trump misreads Marbury and its progeny,” they wrote. “Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”And Judge Henderson appears to have resolved her concerns about distinguishing between ministerial and discretionary conduct:Although certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is “amenable to the laws for his conduct” and “cannot at his discretion” violate them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment.With the “boring” bits out of the way, the court was free to spend 40 pages dunking on Trump’s truly terrible arguments — because that’s just good clean fun.They began by reminding the appellant that he is no longer the president.Donald J. Trump was elected the 45th President of the United States on November 8, 2016. He was sworn into office at noon on January 20, 2017, and served until his term expired at noon on January 20, 2021. At that moment, President Trump became former President Trump and his successor, Joseph R. Biden, became President and began his own four-year term.Remember thou art dust, and to dust thou shall return!They reminded Trump that he had no role to play in Congress’s certification of the election results, en route to summarily dispensing with his bizarre argument that the Constitution’s Take Care Clause obliged him to obstruct Congress and try to substitute slates of fake electors.“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity,” they sniffed, adding later that, “To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error.”Trump’s claim that the impeachment is somehow a criminal process attaching jeopardy merited little more than an eye-roll and reminder that being removed from office is not the same as being “put in jeopardy of life or limb.” And the discussion of Trump’s preposterous argument that the Senate’s failure to convict functions as a Get-Out-of-Jail-Free Card descended into open mockery.Noting that requiring impeachment as a prerequisite for prosecution “would leave a President free to commit all manner of crimes with impunity” as well as “crimes not discovered until after a President leaves office,” the opinion drops to a footnote calling out all 30 Republican senators who said that there was no need to impeach Trump after leaving office because he was still liable to criminal prosecution. Doh!“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,” they concluded. “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.”And so, barring a stay from SCOTUS, the mandate will return next week to Judge Tanya Chutkan, who only Friday took the March 4 trial date off the calendar.Trump is already screaming, and will doubtless ask his pals Amy, Brett, Neil, Sam, and Clarence for an assist.
Right about now, the special counsel is probably wishing he hadn’t told those justices that “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court” and insisted that “only this Court can definitively resolve them.”But that is a problem for another day.US v. Trump [District Docket via Court Listener]US v. Trump [Circuit Docket via Court Listener]Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast. For more of the latest in litigation, regulation, deals and financial services trends, sign up for Finance Docket, a partnership between Breaking Media publications Above the Law and Dealbreaker.