In an influential appellate court ruling, Donald J. Trump, the former president of the United States, faces the possibility of standing trial for his alleged attempts to overturn the 2020 elections. The court’s decision reiterates a salient point emphasized by prosecutors that once no longer holding office, a president’s immunity from legal proceedings equals that of an ordinary citizen. Trump, despite potentially asking for a full DC Circuit rehearing of the case, or going before the US Supreme Court, can no longer claim complete immunity from prosecution due to his past position.
Special Counsel Jack Smith’s ambition to bring the case before a jury for Trump’s actions leading up to and during the Jan. 6, 2021, US Capitol riot is gaining momentum. If proven, his alleged efforts to remain in power would signify “an unprecedented assault on the structure of our government.” According to the panel, Trump upended constitutionally established procedures, interfering in a process – the counting and certification of Electoral College votes – which should not have involved a sitting president.
The judges further asserted that equating his second impeachment by the US House of Representatives and potential ensuing criminal trial to “double jeopardy” was not valid. Their argument was that impeachment is not equivalent to criminal punishment and the indictment does not charge the same offences as the impeachment. The panel referred to historical precedence, opining that the intention of the Framers was for public officials to face both regular criminal prosecution and impeachment.
With this decision, the president, current or past, can no longer operate outside the reach of legislative, executive and judiciary branches. They maintained that giving further immunity to Trump would “aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” The court finally proclaimed, “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.”
Looking forward, Trump has until Feb. 12 to petition the Supreme Court. If accepted, the case would be heard by the justices, potentially on an expedited basis, before announcing a decision. However, if rejected, the appellate court decision will persist and Trump must face a trial. He could also seek a rehearing in front of the full DC Circuit panel. Such an “en banc” review seldom happens, yet while the court decides whether to grant it, Tuesday’s decision would take effect. This process means that the case would proceed in the trial court and if the review were granted, the case could again be put on hold. As this unfolds, Trump must also address three other criminal complaints.
This court ruling can be further examined in the original article, published on Bloomberg Law.