The Trump Election Immunity Ruling, Annotated


A unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia rejected former President Donald J. Trump’s claim that he was immune to charges of plotting to subvert the results of the 2020 election. Mr. Trump is expected to appeal to the Supreme Court.

The New York Times annotated the ruling.

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President Trump Has Become Citizen Trump

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The panel declares that even if a sitting president is temporarily immune from prosecution — something the Justice Department has asserted but the Supreme Court has never stated — a former president no longer has that protection.

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Innocent Until Proven Guilty

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While saying that many of the efforts Trump and his supporters made to overturn his loss of the 2020 election were “allegedly criminal,” the panel emphasizes that his guilt is yet to be determined.

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Summarizing the Indictment

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This part of the ruling goes through the criminal charges.

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Impeachment Acquittal

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In noting that the Senate fell short of the two-thirds needed to convict Mr. Trump at his impeachment trial for inciting the Jan. 6 Capitol riot, the panel notes that an important factor was that he was no longer president by the time of that trial. Numerous Republican senators publicly cited that factor as a basis for their votes to acquit him.

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The District Court Opinion

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The panel summarizes the ruling by the Federal District Court judge overseeing the election case, Tanya S. Chutkan, late last year rejecting Trump’s immunity claim.

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Speed, Then Delay

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The panel took nearly a month to hand down its ruling, a surprising delay given that it had set an expedited schedule for briefings and arguments. As weeks passed, speculation mounted over the potential role of Judge Karen L. Henderson, the sole Republican appointee on the panel, because she had ruled in favor of Mr. Trump in other disputes and opposed speeding up the case. Ultimately, however, the ruling was unanimous.

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Not Too Early to Decide

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One question was whether Mr. Trump had brought the appeal too soon and whether he would need to wait for a trial before raising the claim of immunity should he be convicted. Both Mr. Trump and the Justice Department had urged the court to decide the immunity issue now, and the judges agreed they could do so without waiting.

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Ex-Presidents Can Warrant Exceptions

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One theme running through the various legal cases involving Mr. Trump is whether former presidents should be treated differently than normal defendants. In this case, the panel says the fact that he is a former president is an additional reason to decide the immunity issue now rather than waiting for him to go to trial.

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Trump’s Position

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Mr. Trump is claiming that presidents are absolutely immune from criminal prosecution over their official acts and that his efforts to overturn the 2020 election results fall into that category.

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A Novel Claim

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While the Supreme Court has held that presidents are immune from civil lawsuits over their official acts, there is no precedent that says they cannot be criminally charged for official crimes. Before Mr. Trump, no former president was ever charged with a crime, so the judiciary has never had an opportunity to consider this issue until now.

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Reviewing Whether a President Broke the Law

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The panel says that while courts may not be able to review how a president exercised discretionary executive authority, they can review whether he violated federal criminal statutes that he is bound to obey.

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A Famous Precedent

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The panel invokes one of the most famous precedents in the annals of law on executive power: In 1952, the Supreme Court struck down as illegal President Truman’s attempt to seize the nation’s steel mills to maintain production during the Korean War. Questions of presidential power are often discussed in the context of Justice Robert Jackson’s concurrence, which analyzed what a president could do when acting in alignment with federal statutes, in the absence of statutes or in conflict with statutes.

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Criminal Subpoenas

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The panel notes precedents like the Nixon Watergate tapes case showing that presidents must obey subpoenas in criminal investigations.

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No Power to Defy Criminal Law

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The panel concludes that courts have jurisdiction to to hear the charges — rather than the president being immune: “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”

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Issues for Another Day

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The panel stresses that this ruling does not address whether a sitting president can be prosecuted, nor whether a state court can prosecute a sitting or former president. Mr. Trump, of course, is also facing a state trial in Georgia over his attempts to subvert the election.

Balancing Interests

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The public and government interest in holding people accountable over violations of criminal law outweigh fears that presidents will be chilled in exercising their constitutional authority because they are concerned about future prosecution.

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Presidents Are Unlikely to Be Timid Souls

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Analogizing the case to other situations, like jurors, the panel concludes that the possibility of criminal prosecution should not be expected to frighten presidents out of doing their jobs.

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Nixon’s Pardon

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If presidents are immune from prosecution, then Gerald Ford’s pardon of Nixon after Watergate — and Nixon’s acceptance of that pardon — was unnecessary. The panel is making the point that other presidents have understood that they are not absolutely immune.

The Possibility of Prosecution

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Mr. Trump’s legal team had argued that presidents are not immune from prosecution for official actions if — but only if — they had first been impeached and convicted over those same actions. While rejecting impeachment conviction as a necessary precondition, the panel notes that this acknowledgment means that presidents are already aware they could later be prosecuted for any official crimes, so there would be some chilling effect regardless.

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Chilled From Breaking the Law

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The panel says a lack of immunity is a good thing.

Bait and Switch

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The panel notes that in his impeachment trial, Mr. Trump argued through his lawyers that he could not be prosecuted by the Senate because he was no longer president while assuring lawmakers that the criminal justice system remained available as a potential way to hold him accountable. Here is an article about that issue.

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Prospect of Routine Harassment

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While the Supreme Court was worried that allowing presidents to be sued for their official actions would result in a deluge — countless people affected by countless actions could bring suits — there are far greater limitations on who can bring a criminal case and under what circumstances.

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Article II Cuts Both Ways

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Presidents may have an interest in being able to act free from the fear of later prosecution, but presidents also have a constitutionally mandated interest in seeing that the rule of law is upheld.

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Counting of Electoral College Votes

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Mr. Trump has said his actions in seeking to overturn the election results were official, rather than the private actions of a candidate for office. The panel notes that presidents have no constitutionally prescribed role in the Electoral College system.

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Trump’s Official Duties

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Mr. Trump has argued that his actions were official because he had a duty to uphold election law. The panel says his alleged actions conflicted with that duty.

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Harsh Words

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The panel’s description of Mr. Trump’s actions leading up to Jan. 6 is forceful.

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‘We Cannot Accept’

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In a powerful echo, the panel repeats the same language in recoiling from the implications of Mr. Trump’s arguments.

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Impeachment Clause

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Mr. Trump had argued that this part of the Constitution means a president may only face criminal prosecution over an official action if he was first impeached and convicted by Congress. The court says the clause makes clear exactly the opposite: that impeachment and criminal prosecution are unrelated.

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Rejecting Trump’s Interpretation

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The panel says Mr. Trump’s reading of the clause is wrong for a variety of reasons it goes on to explain.

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Federalist No. 69

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The panel disagrees with Mr. Trump’s reading of one of the Federalist Papers, essays written by three founders — in this case Alexander Hamilton — to explicate the meaning of the Constitution during the debate over its ratification.

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An Implausible Reading

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Among other things, Mr. Trump’s reading of the clause would mean that all civil officers of the United States are immune from prosecution for crimes committed while in office unless the Senate first impeaches and convicts them.

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Committing Crimes With Impunity

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Among other things, the panel notes here that 30 Republican senators cited the fact that Mr. Trump was no longer in office as a basis to acquit him at his second impeachment trial. While those senators’ expressed view is contested, the implication is that presidents could commit crimes late in their administration —when there is not enough time for a trial before they leave office — with no recourse.

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Were the Acts Official?

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Since the panel has decided that former presidents don’t have criminal immunity for official actions, it doesn’t matter whether Mr. Trump’s actions were undertaken in his official capacity as president or his personal capacity as a candidate for office. Nevertheless, the judges suggest they were probably in the last category. That issue matters in a civil lawsuit brought against Mr. Trump by the Capitol police and lawmakers caught up in the Jan. 6 riot, since presidents have immunity from being sued over their official actions but not their personal ones.

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Different From Impeachment Case

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Mr. Trump had argued that he is facing double jeopardy since he was already tried in the impeachment case over the events of Jan. 6. The panel rejects that argument for several reasons, including that impeachment is not a criminal proceeding and the charge he faced before Congress — inciting the riot — is not among the offenses listed in the criminal indictment.

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Impeachment Acquittals Are Political

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The panel notes that being acquitted in an impeachment trial is “often” unrelated to factual innocence. It goes on to observe, “The 43 senators who voted to acquit him relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense.”

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Summing It Up

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The panel wraps up its unsigned opinion by restating the bottom line: Mr. Trump’s claim of criminal immunity for any claimed “official” actions as president is legally baseless and the prosecution is not barred by “double jeopardy” principles despite his impeachment acquittal.



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