The DC Circuit rejects Trump’s bid for immunity.  ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌   
Brennan Center for Justice The Briefing
The ruling yesterday by the U.S. Court of Appeals for the DC Circuit was a landmark in American law.
Three DC Circuit judges emphatically rejected Donald Trump’s claim of immunity from prosecution, which they described as “unsupported by precedent, history, or the text and structure of the Constitution.” They deftly deflated his pretensions: “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.” The court refused to accept an interpretation of the Constitution under which “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.”
It was an epic case — but also an easy one. Now the Supreme Court should do its part by refusing to hear an appeal.
It has been long assumed that while presidents cannot be criminally prosecuted while in office, former presidents can be. Gerald Ford’s pardon of Richard Nixon in 1974 was necessary, Ford explained, because the former president would soon be indicted. Bill Clinton agreed to a fine and suspension of his law license after leaving office to avoid prosecution. During Trump’s second impeachment, his own counsel argued that impeachment was unnecessary because Trump could be tried in court for his alleged crimes.
So the ruling was not a surprise. However, it was a refreshingly strong and definitive opinion, crafted, presumably, to be the final word. If only it had come sooner.
Of note, the decision sets conditions to get the preparations for Trump’s criminal trial moving again — and quickly. The circuit court gave Trump until Monday to appeal to the Supreme Court. Trump undoubtedly will do so.
Still, there is almost no chance the Supreme Court will reverse this ruling. Even the current hard-right Court likely will not accept Trump’s vision of a president-king. The justices weren’t interested in the former president’s arguments to overturn the election in 2020. And they seem to have noticed the wicked public blowback they’ve received recently, especially on some democracy-related cases. The justices rejected the conservative fan-fiction reading of the Constitution known as the “independent state legislature theory,” and they declined the opportunity to destroy the last vestiges of the Voting Rights Act.
What matters right now is that Trump’s federal trial for trying to overthrow American democracy begins soon, so voters can know whether they are being asked to elect someone who committed felonies. The Supreme Court should refuse to hear the case. That would endorse this decision while saving time.
When the Supreme Court wants to, it can act fast. The justices may find it hard to resist the temptation to make a grand ruling. But timing now matters more than rhetoric.
Let’s get on with the trial.

 
Coming Up
TODAY: Wednesday, February 7, 3–4 p.m. ET
 
Join the Brennan Center’s Michael Waldman, former U.S. Attorney Joyce Vance, law professor Aziz Huq, and legal historian Holly Brewer to analyze and discuss the importance of the DC Circuit Appeals Court’s ruling rejecting Donald Trump’s claim that he is immune from prosecution. The defeat for Trump is a historic ruling on a question that judges have never fully addressed. We will discuss Trump’s impending trial for the January 6 insurrection and other criminal prosecutions, as well as the role the Supreme Court may play. RSVP NOW

 
How Texas Punishes Voters
Next week, the Brennan Center and our co-counsel, the Mexican American Legal Defense and Educational Fund, will present closing arguments in our federal lawsuit challenging Texas’s 2021 voter suppression law. As dozens of witnesses testified during the trial last fall, Senate Bill 1’s numerous provisions targeting voting access have led to chaos, confusion, and significant disenfranchisement. It has disproportionately harmed Black and Latino voters and made it harder for those with disabilities or limited language proficiency to get help casting a ballot. “Texas voters are left disillusioned and daunted by the legislature’s continued efforts to restrict access to the ballot for millions of eligible voters,” Kendall Karson and Robyn Sanders write. Read more
Challenges to Trump’s Ballot Eligibility
Tomorrow, the U.S. Supreme Court will hear an appeal of the Colorado Supreme Court decision banning Donald Trump from appearing on the state’s primary ballot. But Colorado is far from the only state that has seen efforts to remove Trump from the ballot — so far, 49 such actions have been filed before courts or election officials in 32 states. A State Court Report article explains how the many bids to remove Trump from the ballot differ, why those differences matter, and where each challenge currently stands. READ MORE
Reforming Government Surveillance Powers
Congress has until April 19 to decide whether to reauthorize Section 702 of the Foreign Intelligence Surveillance Act, a controversial law that has been used to illegally spy on Americans. So far, lawmakers have introduced four bills that would reauthorize Section 702, but only two of them would help prevent future government abuses. A new Brennan Center explainer walks through the benefits and drawbacks of the bills and outlines why Congress has a duty to quickly reform the law. Read more
Assessing Controversial Execution Methods
Yesterday, the South Carolina Supreme Court heard oral arguments on whether executing a person by electrocution or firing squad violates the state constitution. In the case, four people on death row argue that these methods, which can involve excruciating pain and drawn-out deaths, defy South Carolina’s prohibition against cruel, unusual, or corporal punishment. As Kathrina Szymborski Wolfkot and Jamie Muth explain in a State Court Report analysis, the case comes at a time when states across the country face shortages of the drugs used for lethal injection, causing them to turn to antiquated or untested methods of execution whose constitutionality may be called into question. READ MORE
State Courts Diverge on Voting Rights
Supreme courts in Idaho and Kansas will soon decide how closely courts must review laws that burden the right to vote under their respective state constitutions. Based on the differing approaches taken by lower courts in both states, the outcomes will depend on both how the high courts interpret their own constitutions and what role they feel federal law should play in state court. In State Court Report, Eliza Sweren-Becker details the lower courts’ rulings and explains the stakes of the forthcoming decisions. Read more

 
News
  • Alice Clapman on the attacks on direct democracy // AMERICAN PROSPECT
  • Mekela Panditharatne on AI-generated deepfakes // POLITICO
  • Michael Waldman on the political dynamics around Trump’s legal battles // USA TODAY
  • Daniel Weiner on Trump’s questionable use of campaign funds // FORBES
  • Tom Wolf and Wendy Weiser on the attempts to revive the “independent state legislature theory” // ELECTION LAW BLOG

 
 
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