OPINION: This article may contain commentary which reflects the author's opinion.
The Washington DC Circuit Court of Appeals has ruled against former President Donald Trump’s presidential immunity claims setting the stage for a likely case in the Supreme Court.
The decision was expected as Special Prosecutor Jack Smith originally wanted to take the case to the Supreme Court but the Trump team argued that it should go to the Court of Appeals first.
The Supreme Court agreed and it is still a victory for the former president as this decision and they likely appeal will continue to postpone the case.
“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,” the court said, CNN reported.
“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,” the court said.
“Moreover, past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances, so the possibility of chilling executive action is already in effect,” it said.
“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.’ We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution,” it said.
The ruling from the three-judge panel was unanimous. The three-judge panel who issued the ruling Tuesday includes two judges, J. Michelle Childs and Florence Pan, who were appointed by Joe Biden and one, Karen LeCraft Henderson, who was appointed by George H.W. Bush.
Trump’s team could appeal the ruling directly to the Supreme Court, or first ask for en banc review at the appeals court, meaning the case would be heard again, but this time by the full DC Circuit.
If proven, the court wrote, Trump’s efforts to usurp the 2020 presidential election would be an “unprecedented assault on the structure of our government.”
The appeals court said that the president was not protected by presidential immunity by the separation of powers clause in this case.
“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,” the court said, which meant that existing case law “provide him no structural immunity from the charges in the Indictment.”
The court said, “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.”
It said that the former president asked them to find “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,” it said.
Before taking the case to the Supreme Court the former president and his attorneys can ask for an en banc hearing before the entire DC Circuit, which would continue to delay the trial.
“Notable for timings in the Trump federal Jan. 6 case: DC Circuit panel only gives Trump the stay until Feb. 12, or beyond if he appeals to SCOTUS and until SCOTUS rules on the petition. Trump doesn’t get the luxury of keeping the stay to seek an en banc rehearing, The Guardian reporter Hugo Lowell said on X, formerly Twitter.
“Trump can move for an en banc review (meaning that the entire DC Circ. Ct. of Appeals would hear the case), but that would not stop the case from being returned to Judge Chutkan,” MSNBC reporter Katie Phang said.