Former president Donald Trump does not have presidential immunity in his federal election-subversion case, a federal appeals court ruled unanimously on Tuesday.
“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 three-judge panel of the D.C. circuit court wrote in a 57-page opinion. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The unanimous ruling is a major setback for Trump in the case after special counsel Jack Smith charged the former president over his alleged efforts to overturn the 2020 presidential election, which led to the Capitol riot on January 6, 2021. Trump previously argued he has presidential immunity because the crimes that he’s accused of took place before he left the White House.
The court rejected this claim: “[Trump] allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of the Congress.”
The court concluded Trump is not protected from criminal prosecution under the separation of powers doctrine or Impeachment Judgment Clause of the Constitution.
“Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches,” the opinion reads. “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.”
“In drafting the Impeachment Judgment Clause, to the extent that the Framers contemplated whether impeachment would have a preclusive effect on future criminal charges, the available evidence suggests that their intent was to ensure that a subsequent prosecution would not be barred,” the judges add.
It’s possible Trump’s legal team could appeal the ruling to the U.S. Supreme Court, or file a petition asking for an en banc review in the federal appeals court that delivered the ruling. The latter option means the immunity case would be reheard by all eleven judges on the D.C. Circuit, not just a three-judge panel.
Trump campaign spokesman Steven Cheung indicated the former president will appeal the ruling, but didn’t specify whether this would entail asking the full D.C. Circuit to rehear the case, or going directly to the Supreme Court.
“President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Cheung said in a statement.
Trump must file an emergency-stay request with the Supreme Court by February 12 if he wishes to block the immunity ruling before it takes effect.
Trump faces four federal counts related to alleged interference in the 2020 election, including conspiring to defraud the U.S. and to obstruct an official proceeding. He has pleaded not guilty to those charges.
On Friday, days before the D.C. circuit court decided that Trump is not immune from prosecution, U.S. district judge Tanya Chutkan postponed Trump’s January 6 case.
The trial was originally set to start March 4, the day before Super Tuesday, when voters in 15 states and one U.S. territory will cast their primary ballots. No new date for the trial has been scheduled, according to Chutkan’s order.