Two Rulings in D.C. Knock Trump Back

Courts found on the same day that Trump enjoys neither absolute civil nor absolute criminal immunity for his actions around January 6

Pool photo by Delcia Lopez

On Friday, two pivotal rulings out of courts in D.C. dealt blows to one of Trump’s primary legal defenses.

The D.C. Court of Appeal issued a long-awaited ruling in a civil case against Trump, brought by police officers and Congressmembers threatened and injured during the January 6 Capitol insurrection.

Trump had argued that he had “absolute immunity” from civil liability over any of his conduct while serving as president, even his incitement of the riot itself. But Judge Amit Mehta had found that no such absolute immunity existed, and on Friday a three-judge appellate panel agreed. They wrote unanimously that Trump was not entitled to “official-act immunity” because actions taken while campaigning are not actions by the president but rather by the candidate. 

On a related question, and by no small coincidence, Judge Tanya Chutkan, who is presiding over Trump’s criminal trial in D.C., issued her opinion just hours later, ruling that Trump did not enjoy “presidential immunity” against criminal prosecution for actions undertaken while president. “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens,” she wrote.

In today’s piece, we’ll take a closer look at Trump’s arguments and why they were rejected by these courts. And I’ll go out on a limb and make a prediction about what the Supreme Court will do and, critically, when they will do it.

Trump’s main argument for absolute presidential civil immunity

Courts have long recognized that presidents can’t carry out their official responsibilities if the threat of civil liability hangs over them. That’s why, when it comes to their official acts, presidents enjoy absolute immunity from civil damages claims based on those acts. This way, the president can, as the three-judge panel put it, “fearlessly and impartially discharge the singularly weighty duties of the office.”

Trump argued that his speech on matters of public concern around the election was inextricably bound up with his official acts as president. This means, according to Trump, that when he spoke to the crowd on January 6 at the Ellipse, he was speaking as both their president and as a candidate. 

Charitably put, when Trump repeated lies about a stolen election and railed against non-existent election fraud, he claims he was doing so because the president, as the Chief Executive, has a duty and an obligation to raise and address questions of electoral fraud.

The reasons Trump’s civil immunity argument fails

The three-judge appellate panel, which included a conservative judge appointed by Trump himself, found this argument unpersuasive. The campaign of a first term president campaigning for a second term is not an official presidential act. And the Office of the President doesn’t care who will occupy it next.

That’s why private fundraising campaign events are not official acts. It’s why there’s a separate entity called the “Trump Campaign” and why activities at which Trump appears that are funded by that campaign are not official acts. Trump was acting as an office seeker and not an office holder.

Indeed, when Trump challenged the results of the elections in the courts in 2020, it was his campaign that did so, not the office of the President, and rightly so. He appeared before the courts as a candidate for office, which gave him the standing to be there. This was about arguing for his right to win the election, not about exercising some official function of the presidency.

Trump’s main argument for absolute presidential criminal immunity

In his criminal case before Judge Chutkan, Trump points to text in the Constitution in the Impeachment Judgment Clause for support that he is entitled to absolute criminal immunity. That clause states,

Judgment in Cases of Impeachment shall not extend further than to remove from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States, but the Party convicted shall nevertheless be liable and subject to Indictment, Trial Judgment and Punishment, according to Law.

Trump argues that this clause means he could be indicted only after he’s been impeached and convicted by trial in the Senate, which as we know failed to happen (thanks, Mitch McConell). He concludes that the Impeachment Judgment Clause should be read to grant absolute criminal immunity to former presidents like him.

Students of logic, your ears may be pricking up at this fallacy advanced by Trump. Let’s take a look at why Judge Chutkan saw right through this.

The reasons why Trump’s criminal immunity argument fails

The plain text of the Impeachment Judgment Clause can be broken down into two parts. The first talks about limitations of impeachment judgments, “identifying the permissible penalties associated with impeachment itself,” noted Judge Chutkan. The second part uses the word “nevertheless” to indicate that indictments and punishments outside of removal from office could still apply. (She rather cheekily also goes through what the word “nevertheless” meant at the time of the Framers.)

After walking through Trump’s citations to the Federalist papers and finding they also support that plain reading of the words—i.e., that the clause is in no way a limitation on what charges might be brought in the event of no impeachment and conviction—Judge Chutkan serves up some common sense.

Here’s a fun logical teaser she uses:

From the statement, “if the animal is a cat, it can be a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.” 

This is a logical fallacy called “denying the antecedent,” and the judge had to explain it to Trump’s lawyers like they were twelve. Trump argues that because a president who gets impeached and convicted may be subject to criminal prosecution, somehow a president who is not convicted may not be subject to criminal prosecution. But that does not logically follow.

(Trump might better understand it this way: Something that is a “person, woman, man, camera or TV” is something Trump can recognize. But that doesn’t mean something that is not a “person, woman, man, camera, or TV” is something that Trump cannot recognize, like one of his own grandchildren.)

Tying the two cases together

If Trump can be held civilly liable for unofficial actions taken while he was president, it would be incongruous if he could not be held criminally liable for similar actions. That’s why the decision on the same day by a unanimous panel of the D.C. Court of Appeals is so striking. It forecloses many arguments Trump might still have made against Judge Chutkan’s ruling.

Trump argues that the general rule that a president is immune from prosecution while in office should extend past the point of the presidency. Otherwise, he claims, the president and his advisors will be hampered in their decision making by the threat of subsequent legal action.

But we now know from the Court of Appeals that this immunity for the president only applies to actions undertaken in his official capacity, not to his unofficial actions. Actions by Trump to overturn the election and to incite the riot, for example, were not “official” actions that somehow subsumed his unofficial ones under a blanket of official immunity.

Nor does the idea that future threat of liability or prosecution might chill a president’s deliberations with advisors grant a blanket right for him to conspire to commit unlawful acts. Nixon learned that the hard way when he lost on this very question before the Supreme Court back in the 1970s and had to turn evidence of his crimes over in the form of tape recordings.

What happens next?

Because Trump’s motion in the criminal case concerns a question of constitutional immunity, it must be fully decided before the trial can commence. “Fully decided” means no more appeals or decisions left to wait upon before trial. Currently, that trial is set for March 4, 2024. So the clock is ticking.

Trump will appeal Judge Chutkan’s ruling, and he hopes that will eat up a lot of time. While there’s no telling how long it might take for an appellate panel to rule, Jack Smith is likely to ask for an expedited briefing schedule because the papers are basically already written and this is a pure question of law. 

This isn’t the first time, by the way, that Judge Chutkan has ruled on a Trump matter that required expedited review by both the D.C. Court of Appeal and the Supreme Court. When the January 6 Committee sought Trump’s presidential records from the National Archives, Trump filed an action to stop the production of those records, claiming executive privilege. The case raised many of the same issues here, including whether claims of privilege by the previous executive extend into his post-official period.

It was in that case where Judge Chutkan wrote the now famous words: “But presidents are not kings, and plaintiff is not president.” Trump appealed that decision. But there, the appellate panel moved quickly—in exactly one month—to affirm it. 

Trump sought delay again by appealing to the Supreme Court. But just one month and ten days later, the High Court rejected Trump’s request for an injunction. (Only Justice Thomas, who should have recused himself given his wife’s involvement in efforts to overturn the election, dissented.)

This example of course doesn’t mean the courts will act with the same haste and decisiveness here. After all, the appellate court in the civil immunity matter took almost two years to affirm Judge Mehta’s ruling. But it does show that, when pressed, courts are ready and able to act with relative speed on questions of grave national importance. 

My guess at this point is that the Court of Appeal will grant expedited briefing and rule within a few weeks. Trump could then seek en banc review by the entire D.C. Circuit or directly appeal, as he eventually must, to the Supreme Court. 

But in the end, I do not believe this SCOTUS will rule inconsistently with the general rule, established now in many cases, that unofficial acts do not lead to civil or criminal immunity of any kind once a president leaves office. And I do not believe the justices will need longer than the likely two-plus-months between an appellate ruling and the trial date to decide this. They know that it is in the nation’s best interest to hold the trial before the election, and that time is short. 

And they have never ruled in a way that suggests they hold some special regard for Donald Trump or are willing to delay on his behalf. If anything, it has been the opposite.

For the sake of justice and the security of our democracy, I hope I’m right.