On February 6, 2024, a D.C. District Court three judge panel issued their opinion in Trump’s immunity appeal. The 57 page ruling was unanimous. It is what’s called a per curiam decision which is not signed by any one judge because all of the judges are in total agreement. Courts generally only issue per curiam decisions when the decisions are on non-controversial issues. In other words, the panel is telling us that this 57 page ruling should be thought of as settled law, and the only way any court could or would have decided this outcome.
Think of this as a “duh” decision. How was the 3 judge panel going to decide this appeal? DUH! Just the way they did decide it. A 7 year old could have told you how this appeal would come out. Of course it isn’t fair for a president to get away with breaking the law and committing whatever criminal offenses he wants to commit! It’s too dangerous to give presidents that unbridled power. A president is not a king in our country. Not yet. What if he aspires to be a dictator!? Oh, wait. That’s exactly what Trump has in store for our country if he gets back in power.
HERE IS WHAT THE 3 JUDGE PANEL DECIDED
1) The court totally rejects the idea of blanket immunity for a president both during his term in office and afterwards.
2) Determines that Trump’s acts that he is trying to claim were within the scope of his job as president (acts he engaged in to overturn the election result which Trump is trying to frame as the acts he took to make sure the election was valid) were out of bounds and NOT part of his presidential job or duties.
3) The court totally rejects the notion that a president can only be criminally indicted if impeached first and then convicted by Congress. And they reject the idea that since Trump was impeached, but not convicted by Congress for acts that are close to the ones the DOJ is charging in their case before Judge Chutkan, that Trump cannot be criminally indicted and tried because of double jeopardy law.
WHY TRUMP LOST BIG
This ruling was a huge smack down of Trump’s arguments that a president should be immune from criminal prosecution for acts he committed while president even after leaving office.
Some of Trump’s arguments were just cringeworthy.
- Blanket immunity would mean that a president could break the law with impunity. As Justice Pan pointed out that means that the president could order Seal Team 6 to kill his political rival and not face consequences for that. If that were actually the law of the land, then President Biden could order Trump to be offed by his Secret Service detail tomorrow and not face consequences for killing his political rival. Justice Pan asked Trump’s counsel point blank about this possibility and counsel lamely responded that a president could always be impeached and convicted by Congress and then face criminal prosecution. Trump’s counsel failed to mention that in the history of our country NO president who has been impeached has EVER been convicted. But even beyond that, the idea relied on by Trump’s counsel is nowhere in the Constitution or in any precedent anywhere in the history of our laws. It was made up law out of whole cloth by Trump’s appellate attorneys (probably at the urging of Trump himself because Trump is a huge micromanager and he is injecting himself into every aspect of his defense these days, which is why his counsel in the E. Jean Carroll case, Alina Habba, was so amazingly and shockingly incompetent- resulting in a jury verdict against Trump of $83.3 million). The DC panel shot this blanket immunity idea down too.
- That Trump was acting within the scope of his job as president was also shot down by the panel. The court demystifies what Trump was up to and what Jack Smith will be proving up in his coup plot case by reviewing the evidence Smith will present (and we already heard when the House conducted its hearing about January 6th) in the coming DOJ case. Trump was meddling after the fact in the outcome of the 2020 election to try to find a way to stay in power, which is not only not part of his duties as president, it’s an assault on our democracy. It’s Trump who was engaging in election interference. Big time.
- The “double jeopardy” argument that because Trump faced impeachment in Congress on almost the same facts that he should then be able to avoid criminal prosecution for similar facts once he left office, was summarily disposed of by the panel. There was never even a prayer for that argument because these two venues- Congress and courts of law- do not have the same rules of law or procedure that apply to them. Congressional impeachment is a political issue where lawmakers have complex motives for voting for or against impeachment or conviction. Criminal law is apolitical and the trier of fact is a jury of your peers. Criminal courts require a higher standard for conviction and investigators also have much more extensive investigatory tools at their disposal.
WHAT WILL THE SUPREME COURT DO NOW?
As I wrote about in a prior blog post, the issue of presidential immunity being raised by Trump’s legal team, is one of “first impression”. That means our federal court system has not seen this issue before. That also means there is little to no precedent to rely on when courts make their decisions. Courts rely on past decisions to guide their future decisions. It’s called stare decisis. Settled law. Here, there is an absence of guidance. This is just the kind of issue the Supreme Court might want to put its stamp on so that they can say it is the settled law of our nation.
On the other hand, justices on the Supreme Court are also very aware of the stakes here.
The reason courts have not seen this issue before is because we have never had a president defy state and federal laws and our Constitution to try to stay in power after being voted out of office. Trump’s attempted coup to stay in power was a first in American history and a real low point to boot. Trump’s Big Lie took hold and millions of Republicans still falsely believe Biden is an illegitimate president when he won fair and square. What Trump has done to stay in power is consistent with Trump’s very open, very vocal promise that if he returns to office he will deconstruct our democracy and rule as a king or dictator, not the president of a constitutional democracy. Trump’s attorneys are also forced to torture legal concepts to try to fit with what Trump is insisting they argue- as if he is already a king or dictator. Trump’s appellate lawyers get a D for their knowledge of the law but an A for trying to placate Trump.
Justices on the Supreme Court are not stupid. They know that Trump desperately wants to delay his coup plot trial and that he HAS to delay it if he hopes to get re-elected and back into power. Jack Smith’s case looks to be a slam dunk. A criminal conviction would shift public opinion. Polls reflect a huge shift in voter sentiment if Trump were to be criminally convicted by a jury of regular Americans. 64% of Americans want to know the outcome of such a trial before the election takes place.
WILL THE SUPREME COURT PROTECT TRUMP BY GIVING HIM THE DELAY HE DESPERATELY NEEDS?
What is at stake is nothing less than the future of our democracy and the rule of law. If Trump gets back in power he will not follow the rule of law. If the courts tell him he must do something to abide by the constitution or other laws he will ignore them and if he is president he will be able to get away with that. None of the justices on the Supreme Court want to dismantle the rule of law. On the contrary, they have studied the law and taught the law and understand the importance of their role in upholding it, even if they disagree about how to use their power as Supreme Court justices to reshape our country in favor of constituencies that they want to reward.
So, timing is everything. Judge Chutkan has put Trump’s coup plot case on hold waiting for the higher courts to make their decisions. She can restart the jury selection and trial preparation once the appeals are over. The courts might say that Trump is not immune from prosecution, but if the Supreme Court dilly dallies by taking the usual amount of time to weigh in with their opinion, Trump could avoid prosecution before the presidential election and therefore be immune.
It takes 4 Supreme Court justices to agree to hear an appeal. The 3 judge panel in DC has given Trump’s legal team only until Monday to request an emergency hearing by the Supreme Court. If the Supreme Court refuses cert, the case will go back to Judge Chutkan’s trial court and Jack Smith should be able to try the coup plot case to completion well before the presidential election.
This 3 judge panel opinion tees up the Supreme Court to make a rapid decision to deny cert and accept the reasoning of this very thorough, well reasoned 57 page ruling. Throughout the decision ruling you can almost hear the panel urging the Supreme Court to take a pass on cert. and simply allow their reasoning to stand.
Here are two examples of what the panel says:
No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the
officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power
in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to
submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
United States v. Lee, 106 U.S. 196, 220 (1882). “That principle applies, of course, to a President.”
“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,”
I believe only two justices would be likely to want to give Trump the delay he needs to avoid a criminal trial in DC: Alito and Thomas.
HINTS ABOUT THE 14TH AMENDMENT CASE
Oral argument in the Colorado case where a state court trial judge heard testimony and ruled that Trump should be kept off the primary ballot, will take place in the Supreme Court tomorrow, Thursday, February 8th. One of the so called “off ramps” that the Supreme Court might try to take to allow Trump to stay on primary ballots across the country is to argue that Trump is not an “officer” since section 3 of the 14th Amendment only applies to “officers.” The D.C. three judge panel just make that off ramp harder for the Supreme Court to take. They refer to the president as an “officer” numerous times in their opinion. (See one example in the quote above.)
Many commentators, nonetheless, anticipate that the Supreme Court will “split the baby” by allowing Trump to stay on the primary ballot in every state, but rejecting his immunity argument by denying cert. During oral argument on the 14th Amendment appeal before the Supreme Court on Thursday, February 8th, seven of the nine justices asked questions and made comments that support the idea that this court will not take Trump off of primary ballots across the country using the 14th Amendment as their basis for doing so, even though states have the power to decide almost everything with respect to holding their elections for president.
I suspect that the liberal justices including Justice Jackson, Kagan and Sotomayer are working on a trade off with the rabid right justices Alito and Thomas to get them to deny cert on Trump’s immunity appeal. By denying cert at the same time they find an off ramp to the 14th Amendment disqualification, the Supreme Court could avoid disenfranchising Trump’s supporters, allowing the election to play out, while also allowing Jack Smith’s coup plot case to be tried to completion before the election so that Americans understand who they are voting for.
I think this outcome is most likely.
Stay Tuned. This is going to get very interesting very fast.