Republished with permission from Lucian K. Truscott IV
As you’ve probably heard by now, the U.S. Court of Appeals for the Second Circuit, in a unanimous ruling, rejected the claim by Donald J. Trump that he is immune from prosecution for acts he took while he was president, upholding Judge Tanya Chutkan’s previous ruling to that effect.
The decision refers repeatedly to the charges against Trump that he attempted to overturn the results of the 2020 presidential election in a bid to remain in power, at one point listing the offenses he is accused of committing under three separate federal statutes—“conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 24.”
The Court of Appeals rejected every one of Trump’s legal claims—that he was simply carrying out his role as president under the “Take Care Clause” of the Constitution, that his actions were “official acts” that cannot be prosecuted because the president is protected from lawsuits and prosecution while in office, and that the charges against him amounted to “double jeopardy” because he had been impeached and found not guilty by the Senate.
Just reading the summation of how the case reached the Court of Appeals runs chills down your spine: “The Indictment alleges that former President Trump understood that he had lost the election and that the election results were legitimate but that he nevertheless was determined to remain in power. He then conspired with others to cast doubt on the election’s outcome and contrived to have himself declared the winner. The Indictment charges that he and his co-conspirators allegedly advanced their goal through five primary means.”
The decision then lays out the conspiracy in stark terms.
“First, they used knowingly false claims of election fraud to attempt to persuade state legislators and election officials to change each state’s electoral votes in former President Trump’s favor.”
“Second, then-President Trump and his co-conspirators ‘organized fraudulent slates of electors in seven targeted states attempting to mimic the procedures that the legitimate electors were supposed to follow.’”
“Third, then-President Trump and his co-conspirators pressed officials at the Department of Justice ‘to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.’”
“Fourth, then-President Trump and his co-conspirators attempted to convince then-Vice President Mike Pence to ‘use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.’”
“Fifth, and finally, from the January 6 rally, thousands of his supporters — ‘including individuals who had traveled to Washington and to the Capitol at [his] direction’ –swarmed the United States Capitol, causing ‘violence and chaos’ that required the Congress to temporarily halt the election certification proceeding.”
It is against that background that the Court of Appeals shoots down Trump’s arguments. In its dismissal of Trump’s claims of power under the “Take Care Clause,” the Court of Appeals really sticks it to Trump. “Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role—the counting and certifying of the Electoral College votes—thereby undermining constitutionally established procedures and the will of the Congress…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.”
The Court of Appeals also slammed the door on Trump’s claims of immunity under the Separation of Powers clause of the Constitution: “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. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment.”
Trump’s claim of double jeopardy, that he cannot be prosecuted because he already faced impeachment and was found not guilty, cited a quote from Alexander Hamilton in Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” Trump interpreted this statement, of course, to mean that he would have to be impeached and convicted in order to be “liable” to prosecution afterwards.
The Court of Appeals shot that one down by quoting The Hamilton’s conclusion about impeachment in Federalist 69, “Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the ‘king of Great Britain,’ who was ‘sacred and inviolable.’”
And then there is this from the Court of Appeals: “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.”
The Court of Appeals heard oral arguments in the case on Jan. 9, less than a month ago. The court ordered that Trump has until February 12 to appeal its decision to the Supreme Court, which can agree to hear a Trump appeal, or deny certiorari and not hear his arguments, returning the case to federal district court and Judge Chutkan.
It is unknown, of course, what the Supreme Court will decide to do. But this decision is a powerful rejection of every one of Trump’s arguments on Constitutional and practical grounds. That the Court of Appeals takes the time to lay out what Trump is charged with in such detail is, to me at least, one of the most remarkable things about the decision. We’ve waited nearly a month for this decision. Now we have it. The Supreme Court will be hard pressed not to deal with any appeal by Trump expeditiously. The Court of Appeals for the District of Columbia has given them all the ammunition they need.
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.