Trump never had a real shot at succeeding on his audacious assertion of immunity from accusations of election interference. No previous president facing the prospect of criminal proceedings has made such an argument — not Richard M. Nixon accepting a pardon from Gerald Ford; not Bill Clinton settling with the Independent Counsel Robert Ray by agreeing to pay a penalty and surrender his law license. This was — and more to the point, it remains — a delaying tactic, an effort to postpone any consideration of criminal charges against him until the election is over.
In that sense, the most important thing that happened Tuesday was not contained within the 57-page opinion itself, but in an accompanying order designed to let pretrial proceedings, lately on hold during the immunity appeal, resume as quickly as possible. The order gave Trump only until Monday to start the process of seeking Supreme Court review if he wants to keep the case frozen. (And even if Trump takes the interim step of asking the full appeals court to reconsider the decision, the order said, that would not prevent trial preparations from proceeding unless — as seems unlikely with a unanimous opinion — the full appeals court agrees to take up the case.)
Bottom line: the clock is once again ticking for Trump, although the original March 4 trial date is off the table. Depending on what the Supreme Court does, and how quickly it does it, any trial will wait for at least two months and very possibly longer. The justices could refuse to grant Trump’s request for review or summarily affirm the appeals court.
But special counsel Jack Smith, in asking the justices last December to leapfrog the appeals court and take the case immediately, argued that it “Involves a paradigmatic issue of imperative public importance: the amenability to criminal prosecution of a former President of the United States for conduct undertaken during his presidency.” With both prosecution and defense acknowledging the importance of Supreme Court review, it may be that the justices will take this up. If so, that should be on an expedited basis that has the case argued and decided not just this term, but as swiftly as possible.
The strength of the appeals court’s ruling — echoing the conclusions of the trial judge, Tanya S. Chutkan — should make that task easier. It was no surprise that Trump lost, but he lost resoundingly, without judicial hedging, concurrence or dissent. Judge Karen L. Henderson, a George H.W. Bush nominee, joined two Biden appointees, Judges Florence Y. Pan and J. Michelle Childs, in ruling against him, and they sent a tacit message of solidarity by issuing the decision per curiam — for the court — without a single, identified author.
On the merits, the panel didn’t engage in nitpicking about whether the actions at the center of Trump’s indictment were official in nature or stemmed from his simultaneous role as a presidential candidate that might have sent the case back to Chutkan for further review. Rather, Trump lost, flat out — and correctly so.
As the appeals court has weighed his case, Trump has been on a social media tirade about the supposedly dire implications for future presidents of denying him immunity from prosecution. Without that protection, Trump asserts, presidents in office will be forever looking over their shoulders, retaliated against by victorious rivals, who will deploy prosecutors to go after opponents. “A president of the United States must have full immunity, without which it would be impossible for him/her to properly function,” Trump posted on Truth Social last month.
On that score, the opinion offers a convincing refutation. “We cannot presume that a President will be unduly cowed by the prospect of post-Presidency criminal liability any more than a juror would be influenced by the prospect of post-deliberation criminal liability, or an executive aide would be quieted by the prospect of the disclosure of communications in a criminal prosecution,” the panel said. “Moreover, past Presidents have understood themselves to be subject to impeachment and criminal liability, at least under certain circumstances,…
Read More: Opinion | Trump wanted immunity from criminal charges. An appeals court has now