The unanimous, long-awaited ruling by a three-judge federal appeals court panel finding Donald Trump is not immune from prosecution is so strong that the U.S. Supreme Court is likely to decline to hear any appeal made by attorneys for the ex-president, legal experts say.
Trump had claimed he has “total immunity” from prosecution for any actions he took while president, an argument so extreme his attorneys were forced to tell a judge that even if, while President, Trump hypothetically had ordered SEAL Team 6 to assassinate a political rival, he could not be prosecuted unless impeached by the House and convicted by the Senate first.
“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 judges wrote. Trump’s immunity argument is tied to his federal prosecution by Special Counsel Jack Smith in his case on election subversion and actions surrounding January 6.
Noted legal reporter Adam Klasfeld observes, “This was a three-judge D.C. Circuit panel — appointed by presidents from both sides of the aisle — articulating the stakes of this criminal case, in one voice in a unanimous, unsigned opinion.”
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Klasfeld also highlights important sections from the ruling:
“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 judges wrote.
They noted that “former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.”
“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 added.
Former federal prosecutor Renato Mariotti says the ruling is “Not surprising,” and adds, “this is a *unanimous* decision of the panel rejecting rather silly arguments by Trump‘s legal team.”
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“I wouldn’t be surprised if the Supreme Court declines to take this case up, letting this ruling stand.”
Professor of law Jed Shugerman writes that Tuesday’s D.C. Circuit Court of Appeals ruling is “a thorough unanimous opinion that covers all the bases, so SCOTUS is more likely to deny cert, and more likely a trial starts.” (Denying “cert” means not granting review, or “certiorari.”)
“I get the frustration that they took almost a month,” Shugerman adds – many legal experts have complained the decision was obvious and should have been handed down sooner. “But they wrote a 57-page opinion on interlocutory jurisdiction & some complex merits (e.g., explaining Marbury on discretion), and all 3 judges with different ideological priors had to agree on reasoning and wording. Kudos.”
Former Acting U.S. Solicitor General Neal Katyal, a professor of law and frequent MSNBC guest, said on social media, “This is the opinion the country was waiting for. Straight loss for Trump.”
He points to this from the ruling: “Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government.”
And on MSNBC just after the ruling was handed down, Katyal made clear he believes it is so sound the Supreme Court will not want to review it, and will deny Trump if he attempts to appeal it to the nation’s highest court.
“The court did something really smart,” Katyal says of the D.C. Appeals Court. “They said, Trump, you got to go to the Supreme Court by Monday. Otherwise, this case is going back to Judge Chutkan. He’s going to run to the Supreme Court and my gut is, given the thoroughness and well reasoning of this opinion, and the kind of ludicrous claim that Trump’s advanced on the other, that he’s absolutely immune from all criminal laws, I don’t think the U.S. Supreme Court is going to take this.”
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I mean, they certainly could, you know, they often take executive power cases. But if I had to put betting money on it, I don’t think it’s close right now. And I think the Supreme Court says no, this goes back to Judge Chutkan, and then she has the question, how much time is she going to give Donald Trump to prepare for his criminal trial for being an insurrectionist?”
Watch Katyal’s remarks on MSNBC below or at this link.