An Analysis of the Presidential Immunity Ruling By The Appeals Court

Civil Rights Policy Brief #219 | By: Rodney A. Maggay | February 16, 2024

Featured Photo taken from: www.newjerseymonitor.com

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Policy Summary: On February 6, 2024, a three-judge panel of the United States Court of Appeals for the District of Columbia Circuit issued its ruling in the case United States of America v. Donald J. Trump. The opinion was issued as a per curiam opinion which signals that the three judges are unified behind the decision with no separate concurring or dissenting opinions discussing an alternative reading of the case.

The opinion from the court as an appeal from a trial proceeding in the Federal District Court for the District of Columbia before Judge Tonya Chutkan. After the House Select Committee on the Jan. 6 Attack completed its investigation, it referred the case to the Department of Justice for prosecution. On August 1, 2023, a federal grand jury approved an indictment of four criminal charges against Mr. Trump relating to his interference in the case. As the case proceeded, Mr. Trump’s attorney filed a motion to dismiss the case because they believed that the former President had immunity from prosecution. Judge Tonya Chutkan rejected the motion and the former President, and his team filed an interlocutory appeal to the United States Court of Appeals for the District of Columbia Circuit for a ruling on their presidential immunity claim. LEARN MORE

Policy Analysis: This ruling is significant because it forcefully pushes back on the contentions made by the former President about his actions inciting the Jan. 6 riot and declares that no President is above the law.

Former President Trump made three significant contentions as to why he should enjoy presidential immunity from prosecution, and each was dismissed by the appeals court. First, he claimed that without presidential immunity that subsequent presidents would be hesitant to perform their duties as president for fear of possibly facing charges after they leave office. Second, he also claims that immunity should apply to him because he was performing “official duties.” And lastly, he claimed that he could not be prosecuted because he must first have been impeached and convicted by the Senate.

Former President Trump’s first claim was easily dismissed by the court which did not find it credible that a President (or any of his advisors) would temper their remarks for fear of a lawsuit after the end of a president’s term. Additionally, the court cited historical examples where Presidents understood that presidential immunity did not extend to a former President after leaving office. President Gerald Ford granted a pardon to former President Richard Nixon for crimes connected to Watergate which implied that President Nixon could have faced criminal charges. And President Clinton accepted a fine and a temporary loss of his law license in exchange for no filing of criminal charges against him for actions he took while in office connected to the Monica Lewinsky affair. These incidents provide a historical basis that presidents do not enjoy immunity after leaving office and that presidents are not necessarily cowed, or “chilled,” in performing their duties. Presidents can be held accountable for their actions in office.

As to the claim by President Trump that he should have presidential immunity because he was performing “official duties” on Jan. 6th., the appeals court rejected this theory, too. This claim by Mr. Trump is one of the most extreme contentions made as much of the evidence on that day – videos on Jan. 6th, statements, and actions – shows a President trying to undermine the structures and procedures of our republican form of government. The President, under the Constitution, has no role in the counting and certifying of a nation – wide election and so it is difficult to conceive that Mr. Trump was performing “official duties” that day. Congress had their constitutionally designated role and yet Mr. Trump tried to intimidate Members of Congress into not certifying an election because he did not agree with the result. It is inconceivable that Mr. Trump would have presidential immunity when his actions were so clearly outside the bounds – and likely illegal – of what an ordinary President would have done.

Finally, Mr. Trump’s final contention appeared to be a Hail Mary attempt to throw any argument out there and see if it would stick. Mr. Trump was impeached (the second impeachment of his term) for his role in the Jan. 6 insurrection. However, he was not convicted. The Senate voted 57 – 43 to convict which was short of the 67 (two thirds of the Senate chamber) votes required for a conviction. However, a reading of the text of the Impeachment Judgment Clause shows why Mr. Trump was never going to prevail with this argument. The Clause provides:

“[j]udgment in Cases of Impeachment shall not extend further than to removal from Office and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

The Constitution itself declares that an indictment, trial, judgment, and punishment are all still available. For Mr. Trump to say that he needs to be convicted in an impeachment trial first twists the language of the clause into something that likely was not intended. If a person can be subject to the criminal process after a conviction, then surely a person can be subject to criminal proceedings if he is not convicted. The appeals court rightfully rejected Trump’s claim under this constitutional clause.

Now that the presidential immunity issue for Mr. Trump has been rejected and settled, trial on his federal election interference case is set to continue before Judge Chutkan. LEARN MORE, LEARN MORE, LEARN MORE

Engagement Resources

• PBS – news video from news site explaining implications of ruling.
• Protect Democracy – non – profit group’s webpage giving background on the presidential immunity doctrine.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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