Be Careful What You Wish For

The editors of the Washington Post laud the appeals court’s decision I posted on yesterday:

Donald Trump has no immunity from prosecution for trying to stay in power after losing the 2020 election. The U.S. Court of Appeals for the D.C. Circuit’s opinion on this question, handed down on Tuesday, is as firm and forceful as the former president’s claims are frivolous. That ought to be the end of the matter, and the Supreme Court now has a chance to say so.

A bipartisan panel took almost a month to produce this week’s decision. But, when the three judges finally produced their ruling, they did so per curiam — with a single voice. This choice, from two judges appointed by President Biden and another by George H.W. Bush, not only emphasizes the solidity of the legal reasoning; it also makes it unlikely Mr. Trump will persuade the full appeals court to hear the case, should his lawyers ask. His only remaining option is to apply to the Supreme Court by a Monday deadline the D.C. Circuit has imposed. The justices will then determine whether to take up his petition — and, in so doing, further delay Mr. Trump’s trial for his alleged role in the Jan. 6, 2021, Capitol attack, which U.S. District Court Judge Tanya S. Chutkan had scheduled to begin early next month in D.C. but postponed pending resolution of this issue.

They should say no, allowing the D.C. Circuit’s ruling to stand. The circuit judges have ably dismantled Mr. Trump’s arguments, which were unconvincing to begin with.

The editors of the Wall Street Journal concur:

In an unsigned opinion, the D.C. Circuit’s three-judge panel makes short work of bad immunity arguments, such as the claim that Mr. Trump can’t be criminally indicted because he was already impeached by the House and acquitted by the Senate. This isn’t double jeopardy. It’s legal sophistry.

but warn about possible run-on effects:

Yet the court also makes too-short work of better arguments. In Nixon v. Fitzgerald (1982), the Supreme Court said the President has “absolute immunity” from civil liability for “official acts.” That case involved a federal worker who argued his layoff was political retaliation. “Because of the singular importance of the President’s duties,” the High Court said, “diversion of his energies by concern with private lawsuits would raise unique risks to the effective functioning of government.”

One question posed by Mr. Trump’s case is whether his actions in the run-up to Jan. 6, 2021, were within the “outer perimeter” of his official duties, as Fitzgerald put it. Mr. Trump betrayed Mike Pence on Jan. 6, but if a President asks a Vice President to perform a legislative maneuver in the Senate, that looks like official conduct. What about the other allegations in the indictment, though, such as that Mr. Trump and his aides convened “sham proceedings” to cast phony electoral votes?

The D.C. Circuit blows past the question, because it categorically refuses to extend the logic of Fitzgerald. “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the panel says. The judges are justifiably outraged at Mr. Trump’s conduct after the 2020 election, which they call “an unprecedented assault on the structure of our government.”

of which the appeals court’s decision also took note but I think dismissed too quickly. There is good reason for their concern:

“This is the first time since the Founding that a former President has been federally indicted,” the judges write, with confidence that may not age well. “The risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.”

Mr. Trump is all but promising that if he wins in November, he will ask his Justice Department to charge President Biden. “Joe would be ripe for Indictment,” he fumed last month. For what crime? Who knows, but the federal statute books are voluminous. The Supreme Court last year upheld a law that gives prison time to a person who “encourages or induces an alien to come to, enter, or reside in the United States.”

Unless the Supreme Court acts quickly to limit the appeals court’s decision I will not be surprised if Joe Biden faces thousands of criminal suits on leaving office. He’s not unique in that. All living former presidents would be at risk.

9 comments… add one
  • PD Shaw Link

    The trial judge didn’t reach the immunity for acts within the outer perimeter of the President’s official responsibility, so it’s not surprising that the Court of Appeals did not. Trump wanted categorical immunity. Whatever immunity or privileges he enjoys will be resolved based upon the evidence at trial.

    The trial judge expressly wrote that she was not resolving issues regarding immunity for “outer bound” acts because it would also entail resolving complex Constitutional issues such as the proper interpretation of the “take care” clause, and the proper treatment of non-immune conduct “intertwined” with immune conduct.

    Also the trial court ruled against Trump on the First Amendment issues at the preliminary stage, and Trump didn’t appeal those. Those will also be resolved based upon the evidence at trial.

    The District Court Judge favorably quoted another District Court judge dealing with Trump’s immunity issues:

    “This is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.”

  • or, shorter, proclamations of victory are premature. As are claims that the issues are cut-and-dried.

  • bob sykes Link

    Just how does the American legal system differ from Pakistan’s, if at all?

  • steve Link

    We dont really have precedent for much of whatTrump has done so I think it sort of needs to go to SCOTUS. No other president has tried to steal an election or convinced a large majority of voters that an election was stolen, with no evidence to back the claim.


  • Drew Link

    Who needs precedent, Steve? Never before have we had a man in the White House who takes advice from dead people.

    News Item:

    In a speech last night President Joe Biden informed the crowd that he recently met with Dwight Eisenhower to discuss Iran noting “now there’s a man who knows how to crush an enemy.”

  • Lincoln had at least one seance conducted in the White House. He does not appear to have believed in communing with the dead but Mary did. Perhaps PD Shaw can fill us in on this.

  • steve Link

    Come on Drew. Trump claimed Biden was going to plunge us into WW2. Surely that means Biden gets to talk with Ike, a true expert on WW2.

    Dave- Did Nancy have seances or did she just talk to the stars in order to advise Reagan?


  • I thought Nancy Reagan was just into astrology.

  • PD Shaw Link

    Lincoln attended at least some seances in the White House arranged by Mary following the death of Willie for certain. There are news accounts preceding his Presidency that he attended seances when he was in New York in 1860. But there was a lot of reporting that seemed ludicrous on its face. It’s most likely he attended seances because it had become a popular interest in the 1850s, particularly among the anti-slavery crowd. Lincoln’s attitude is unknown, but was probably merely interested and curious.

Leave a Comment