From the Left



Citizen Trump

Susan Estrich on

On Tuesday, as expected, a three-judge panel of the United States Court of Appeals for the D.C. Circuit rejected in the strongest possible terms former President Donald Trump's claim that he is absolutely immune for crimes allegedly committed while he was in office. "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 wrote in a per curiam opinion, meaning it came from all three judges, a way of expressing the unanimity of the court's forceful opinion. The underlying charges accuse Trump of conspiring to overturn President Joe Biden's election as president.

The court's decision of this question of first impression was grounded both in the constitutional doctrine of separation of powers and the individual's right to vote and to have that vote counted. "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. 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."

As well, the court made clear that the context, the certification of the election, mattered, although Trump had made clear that he intended to invoke absolute immunity in his defense of all four criminal cases against him. Recognizing that Trump's argument "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," the court rejected Trump's "apparent contention that the executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count."

Trump had argued that without absolute immunity, every former president would be subject to second guessing, and criminal charges, when he left office. "Any mistake, even if well intended, would be met with almost certain indictment by the opposing party at term end," Trump posted on Jan. 19 on Truth Social. "Even events that 'cross the line' must fall under total immunity, or it will be years of trauma trying to determine good from bad." Not so, said the court. "Former President Trump acknowledges that this is the first time since the Founding that a former president has been federally indicted. Weighing these factors, we conclude that the risk that former presidents will be unduly harassed by meritless federal criminal prosecutions appears slight."

In yet another sign of the court's resolve, they took the unusual step of giving Trump only six days to appeal their decision to the Supreme Court, rather than the 21-day period that losers usually have to seek review by the full appellate court first (a delaying tactic that Trump would ordinarily take advantage of, not because there was any real chance of review but because delay has been Trump's preferred strategy). Trump needs four votes from the justices to agree to hear the case, and five votes to stay the case.


There is no good reason for the court to review the decision reached by appointees of both Republican and Democratic presidents. The reason it is unprecedented is because no former president has ever been criminally indicted or claimed absolute immunity before. If this question were so difficult that it merited Supreme Court review, that review should have happened already, when Jack Smith asked for it. Instead, the court properly recognized a weak case when it saw it and, without dissent, sent it to the appellate court. The opinion of the D.C. Circuit could not have been stronger. The next move by the Supreme Court should be to deny further review and let the case proceed to trial this spring. To do otherwise would plunge the inevitable trial into the summer convention schedule and the fall general election, which will trigger a new round of Trump complaints and further undercut the court's ability to keep itself out of the business of partisan politics, which is already threatening its legitimacy.


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