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THE BEST LINES IN THE COURT DECISION BLASTING TRUMP’S IMMUNITY
CLAIM  
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David Corn
February 6, 2024
Mother Jones
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_ A federal appeals court just said Trump’s argument he cannot be
charged for crimes related to plotting to subvert the 2020 election is
bullshit. _

, Yuri Gripas/Abaca/ZUMA

 

On Tuesday morning, a federal appeals court in Washington, DC, told
Donald Trump to get lost. That is, it rejected his claim that as a
former president he has total immunity for actions he took while in
the White House. Trump had cooked up this argument to challenge the
indictment filed against him by special counsel Jack Smith, who hit
Trump with four charges for illegally trying to overturn the 2020
election.

The long-awaited 57-page ruling
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issued by the three-judge panel is not full of fiery rhetoric. But it
does contain a few sharp punches aimed at Trump’s contention that a
president should possess king-like power. Here are some excerpts.

The court said Trump has no special standing as a former president:

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.

Trump argued that potential prosecution in the future could chill
presidential action. The court said, _no way_:

 
Former President Trump argues that criminal liability for former
Presidents risks chilling Presidential action while in office and
opening the floodgates to meritless and harassing prosecution. These
risks do not overcome “the public interest in fair and accurate
judicial proceedings,” which “is at its height in the criminal
setting.”

The court had a bit of a ha-ha moment, which many legal observers
anticipated, when it pointed out that Trump’s lawyers had argued
during his last impeachment that his actions related to the 2020
election were not impeachable and that the appropriate venue for
judging them would be a courtroom. _Gotcha_, said the court:

[During] President Trump’s 2021 impeachment proceedings for
incitement of insurrection, his counsel argued that instead of
post-Presidency impeachment, the appropriate vehicle for
“investigation, prosecution, and punishment” is “the article III
courts,” as “[w]e have a judicial process” and “an
investigative process . . . to which no former officeholder is
immune.”

Trump said that without total immunity, former presidents would be
mercilessly harassed. Unlikely, said the court, you’re the only
president to be federally indicted:

[F]ormer President Trump’s “predictive judgment” of a torrent of
politically motivated prosecutions “finds little support in either
history or the relatively narrow compass of the issues raised in this
particular case,” _see Clinton_, 520 U.S. at 702, as former
President Trump acknowledges that this is the first time since the
Founding that a former President has been federally indicted. Weighing
these factors, we conclude that the risk that former Presidents will
be unduly harassed by meritless federal criminal prosecutions appears
slight.

The court noted that Trump’s position made no sense. How could the
guy in charge of enforcing the law be above it?

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.

What also doesn’t make sense, the court said, was a policy that
would allow a president to break laws just to overturn an election
and stay in power. That could be the end of democracy:

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. Nor can we sanction his apparent
contention that the Executive has carte blanche to violate the rights
of individual citizens to vote and to have their votes count.

On the last page of its ruling, the court suggested that Trump’s
argument threatens the entire constitutional order and, if adopted,
could destroy the republic. 

At bottom, former President Trump’s stance would collapse our system
of separated powers by placing the President beyond the reach of all
three Branches. Presidential immunity against federal indictment would
mean that, as to the President, the Congress could not legislate, the
Executive could not prosecute and the Judiciary could not review. We
cannot accept that the office of the Presidency places its former
occupants above the law for all time thereafter.

Bottom line: Not on our watch, the court declared.

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so we can keep on doing the type of journalism 2024 demands.

* Trump's Immunity Claim; Trump's Impeachment;
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