Federal appeals court affirms presidents can be prosecuted just like everyone else

By Thomas Wolf and Samuel Breidbart / Brennan Center for Justice

A federal appeals court in Washington on Tuesday rejected Donald Trump’s assertion that he cannot be prosecuted for his attempts to overturn the 2020 presidential election. This landmark ruling marks a significant step in efforts to hold the former president accountable, clearing the way for him to go to trial for his multi-pronged effort to thwart the peaceful transfer of power. All eyes now turn to the U.S. Supreme Court, whose potential review of the appeals court’s ruling could introduce additional delays.

In a unanimous opinion, the U.S. Court of Appeals for the District of Columbia Circuit said it could not endorse Trump’s “contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.” The ruling stems from Trump’s criminal prosecution in federal district court in Washington. The August 2023 indictment in that case, United States v. Trump, alleges that Trump orchestrated and participated in a conspiracy to overturn the 2020 election results, a driving force behind the January 6 attack on the Capitol.

The federal government charges that Trump and his allies promoted false claims of election fraud, pushed state officials to ignore the results of the popular vote, organized slates of false Trump electors, pressured the Justice Department to conduct sham election-crime investigations, and tried to get Vice President Mike Pence to replace authentic electors with phony ones.

Seeking to derail the prosecution, Trump argued that his case should be dismissed because presidents enjoy immunity for any “official” acts they undertake while in office — a radical claim that would put presidents above the law. The trial court rejected this argument in December, and Trump appealed to the DC Circuit.

The appeals court’s unanimous affirmation of the trial court comes from three judges appointed by both Republican and Democratic presidents. Their opinion held that a president may be prosecuted for any criminal acts he undertook as president. Echoing the trial court, the three-judge panel rejected Trump’s “contention that he is entitled to categorical immunity from criminal liability for any assertedly ‘official’ action that he took as President — a contention that is unsupported by precedent, history, or the text and structure of the Constitution.”

The court’s opinion expressly refrained from comment on whether Trump did in fact commit the crimes he is charged with. But the court concluded that if federal prosecutors are able to prove them, Trump could not claim immunity to escape punishment. In other words, “former President Trump has become citizen Trump” since leaving office, subject to criminal prosecution like all other people. The court explained that ruling otherwise would create a “striking paradox” of allowing “the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed,’” to be the “sole officer capable of defying those laws with impunity.”

The court emphasized that Trump’s alleged crimes violated foundational democratic values that the president is sworn to uphold and represented too severe a threat to the continued functioning of our democratic system of government to be shielded from prosecution. Noting that “[f]ormer 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,” the court refused to accept 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.”

The court also concluded that Trump’s argument in favor of immunity, if accepted, would “collapse of our system of separated powers by placing the President beyond the reach of all three Branches,” by stopping Congress from declaring certain acts illegal, preventing future presidents from holding lawbreakers accountable, and blocking courts from holding trials. The court underscored that while a former president has never been prosecuted federally, past presidents thought they could be — as evidenced by Gerald Ford offering, and Richard Nixon accepting, a pardon “to avoid Nixon’s post-resignation indictment,” and Bill Clinton “agree[ing] to a five-year suspension of his law license and a $25,000 fine” to avoid prosecution.

The district court’s preparations for Trump’s trial have been on hold since December while the DC Circuit has been considering his appeal on the question of immunity. The trial preparations can restart after February 12, unless Trump appeals his case to the Supreme Court or if a panel comprised of the whole DC Circuit decides to take it up.

Regardless of any further appeals, the significance of the DC Circuit’s decision cannot be overstated. The criminal case brought by Special Counsel Jack Smith remains a powerful tool for holding Trump accountable for his attempts to overthrow our democracy, with the potential of lengthy jail time for Trump. Today, the judiciary has made its voice clear: no one is above the law.

Thomas Wolf is Counsel with the Democracy Program at the Brennan Center for Justice, focusing on redistricting issues. Samuel Breidbart serves as counsel in the Democracy Program at the Brennan Center, where he combats the misuse of history in our courts.