NO IMMUNITY — Former President Donald Trump suffered a significant blow to his legal defense today in the most serious of the four criminal cases facing him. A three judge panel of the D.C. Circuit Court of Appeals ruled unanimously that former presidents may be prosecuted for alleged crimes they committed while in office, a victory for Special Counsel Jack Smith’s effort to put Trump on trial on federal felony charges stemming from his efforts to overturn the 2020 election. Now, with Trump vowing he’ll appeal, the case could reach the Supreme Court as soon as Monday. The precise timing of a Supreme Court ruling matters a great deal; only after the high court rules will Smith be able to continue his prosecution of the former president. In today’s 57-page decision, both liberals on the panel were joined by a conservative judge appointed by George H.W. Bush in pointing out that “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 ruling spells a new phase in Trump’s legal troubles. But many questions remain unanswered — chief among them, how the Supreme Court will decide on appeal. To get a better sense of the state of play, Nightly turned to POLITICO’s legal experts, senior legal affairs reporters Josh Gerstein and Kyle Cheney. This interview has been edited. How important was this ruling today? What question did it answer? Josh Gerstein: The decision was a major defeat for Trump’s effort to derail any possible trial on the four criminal cases he faces as he tries to win back the presidency. The federal case charging Trump with conspiring to overturn the 2020 election results is considered the most likely to get to trial before the election this fall. The three-judge panel of the D.C. Circuit essentially endorsed U.S. District Court Judge Tanya Chutkan’s decision rejecting Trump’s argument that he has near-absolute immunity for criminal prosecution for actions arguably related to his official duties as president. No president or former president has ever faced criminal charges before, so the issue was entirely theoretical until last year. The timing was also extraordinarily important. It took the appeals panel a little under a month to rule. If they’d held on to the case for another month or so before ruling, the chances of this case getting tried before the election would have dwindled. Did you find anything surprising in the 57-page decision today? Kyle Cheney: The sheer forcefulness of the opinion — and the unanimity of the two Democratic and one Republican appointees — was the most striking and surprising aspect of the ruling. Listening to the oral arguments last month, it seemed the three judges splintered on some key issues, but they managed to forge a ruling that wasn’t diluted by those differences. Rather, they made some bold pronouncements that almost sounded like a rallying cry for the rule of law and a rebuke of Trump’s expansive vision of presidential omnipotence. “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,” the judges wrote, adding, “Former President Trump’s stance would collapse our system of separated powers.” For a panel that initially appeared divided on some key issues, this was a powerful message to unify around. Should we read anything into the fact that all three judges — two appointed by Joe Biden, and one appointed by George H.W. Bush — signed on to this decision? Cheney: This may turn out to be the greatest benefit for prosecutors. Already, we’ve seen it limit the ability of Trump and his allies to pin the ruling on “Biden” judges or turn it into a left-versus-right issue. Karen Henderson, the longest-serving active member of the appeals court, has often sided with Trump on key issues in recent years and seemed most skeptical of the arguments offered by the special counsel during oral arguments. So, her endorsement of the ruling is a form of armor as it gets scrutinized further on appeal. In addition, dissents or sharply differentiating concurring opinions can provide leverage to detractors looking for weaknesses or ways to limit the impact of a ruling. Having all three aligned may also influence how the Supreme Court approaches the matter. What will Trump’s argument before the Supreme Court be? Gerstein: Trump’s argument will be based both on the wording of the Constitution and what he alleges will be the practical impact of allowing former presidents to be prosecuted. Trump’s lawyers contend that the Constitution’s reference to the possibility of prosecuting officials after impeaching and convicting them means that’s the only way they can be charged criminally. The D.C. Circuit called that a “fallacy.” Trump has also repeatedly argued that allowing him to be prosecuted will open the door to all future presidents being charged criminally by their political rivals. Of course, that hasn’t happened until now in American history. But there are now four criminal cases against Trump. That could be an outlier or a new trend. Do we have any sense of how the individual Supreme Court justices view the issues presented by this case? Gerstein: The issue of criminal immunity for a former president is so novel that it’s hard to predict with certainty where any particular justice will land. In 1974, the Supreme Court unanimously ruled that President Richard Nixon was subject to a grand jury subpoena in the Watergate investigation, rejecting an absolute immunity claim from Nixon very similar to the argument Trump’s making today. None of the justices from that era are still on the court, or even alive for that matter. The more direct analogy to Trump’s current predicament would have been actual criminal charges against Nixon, but those never came to pass because President Gerald Ford’s pardon took that option off the table. In the Trump years and thereafter, the Supreme Court has dealt with many disputes involving the powers of the presidency and the rights of congressional watchdogs, state prosecutors and federal prosecutors. Trump hasn’t done particularly well in those cases but has picked up a vote here and there. Justices Clarence Thomas and Samuel Alito dissented from a 2020 decision rejecting Trump’s claims of absolute immunity from a New York prosecutor’s demands for a decade of Trump’s financial records. Neither justice seemed willing to declare the president entirely immune, but both said the court needed to go further to protect the president against the possibility of politically-motivated harassment. They could see similar mischief in this case, although the fears of a president being distracted from his duties are more attenuated when the case involves a former president. Justice Brett Kavanaugh is also known as a supporter of robust executive power. About two years ago, he wrote a solo opinion emphatically arguing that former presidents should have some power to protect their records from disclosure, although he declined to step in and block Trump’s White House files from being turned over to the House Jan. 6 committee. What does the court timeline look like now? What’s next? Cheney: This is the million-dollar question. Trump must appeal to the Supreme Court by Monday or else the D.C. Circuit panel will permit its ruling to take effect, allowing U.S. District Judge Tanya Chutkan to immediately set a new schedule for the trial. Assuming he does, the court will have a wide range of options to expedite or slow Trump’s case — with its decisions on both timing and substance ultimately determining whether Trump’s trial occurs prior to the 2024 election. Once Trump appeals, expect Smith’s team to ask the justices to quickly decide the issue. They already asked the court once and were denied, prompting the rush through the D.C. Circuit, which took 56 days from start to finish. If the Supreme Court takes the same amount of time but ultimately permits the case to proceed, it sets things up for a summertime trial. Welcome to POLITICO Nightly. Reach out with news, tips and ideas at nightly@politico.com. Or contact tonight’s author at cmchugh@politico.com or on X (formerly known as Twitter) at @calder_mchugh.
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