The New Democrat

Source:CNN– Defendant Don does not have presidential immunity.

“Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency to reverse the 2020 election results, a federal appeals court said Tuesday.
The ruling is a major blow to Trump’s key defense thus far in the federal election subversion case brought against him by special counsel Jack Smith. The former president had argued that the conduct Smith charged him over was part of his official duties as president and therefore shield him from criminal liability.

The ruling from the three-judge panel was unanimous. The three-judge panel who issued the ruling Tuesday includes two judges, J. Michelle Childs and Florence Pan, who were appointed by Joe Biden and one, Karen LeCraft Henderson, who was appointed by George H.W. Bush.

In a statement Tuesday, Trump spokesman Steven Cheung said to expect an appeal. “President Trump respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution,” Cheung said.

The court is giving Trump until February 12 to file an emergency stay request with the Supreme Court, which would stop the clock while his attorneys craft a more substantive appeal on the merits. If he is successful with that, the criminal trial will not resume until after the high court decides what to do with his request for a pause.

If proven, the court wrote, Trump’s efforts to usurp the 2020 presidential election would be an “unprecedented assault on the structure of our government.”

“It would be a striking paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the Laws be faithfully executed, were the sole officer capable of defying those laws with impunity,” they wrote.

The judges flatly rejected Trump’s claim that his criminal indictment would have a “chilling effect” on future presidents.

Trump’ attorneys had argued that if future executives believed that they could be indicted for their “official acts” as president, they would be more hesitant to act within their role.

The panel wrote: “The risks of chilling Presidential action or permitting meritless, harassing prosecutions are unlikely, unsupported by history and ‘too remote and shadowy to shape the course of justice.’ We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution.”

Trump faces four counts from Smith’s election subversion charges, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.

The White House and President Joe Biden’s re-election campaign declined to comment.

Trump has argued that he was working to “ensure election integrity” as part of his official capacity as president, and therefore he is immune from criminal prosecution for trying to overturn the election results. His lawyers have also asserted that because Trump was acquitted by the Senate during impeachment proceedings, he is protected by double jeopardy and cannot be charged by the Justice Department for the same conduct.

The district judge overseeing Trump’s criminal case in DC rejected Trump’s immunity arguments in December, writing that being president does not “confer a lifelong ‘get-out-of-jail-free’ pass.” Trump quickly appealed that decision to the DC Circuit, which agreed to expedite its review of the matter.

Not protected under separation of powers clause
The appeals court found that Trump is not protected from criminal prosecution under the separation of powers clause.

“Here, former President Trump’s actions allegedly violated generally applicable criminal laws, meaning those acts were not properly within the scope of his lawful discretion,” they wrote, meaning that existing case law “provide him no structural immunity from the charges in the Indictment.”

The court said that Trump asked them to find “for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility,” they wrote.”

From CNN

“Former President Donald Trump is not immune from prosecution for alleged crimes he committed during his presidency to reverse the 2020 election results, a federal appeals court said Tuesday. CNN’s expert panel discusses the historic ruling.”

From CNN

“CNN senior legal analyst Elie Honig breaks down an appeals court ruling that former President Donald Trump does not have blanket presidential immunity. The ruling is a major blow to Trump’s defense in the federal election subversion case brought by special counsel Jack Smith.”

From CNN

“Temidayo Aganga-Williams talking about Donald Trump’s lawyer John Sauer: “I think he’s really making the argument for Jack Smith. This is exactly what Jack Smith has been worrying about: are we a country of president’s, or a country of king’s? And I think what Trump’s lawyer effectively argued is that we are a country of king’s.That the President can act as he wants, as he chooses, that we can have violence. You know, we had violence on January 6, he’s saying that the President could take it a lot further. Himself could direct that violence openly using official government sources and that’s fine. He establishes how dangerous this presidential immunity argument is.”

I think pretty much everyone whose not in the MAGA movement in America, (which is about 70% of the country) has predicted that Donald Trump would not lose his presidential immunity claim at the appeals court.

I think the only question here is how big of a loss would it be. Would it be 2-1, with perhaps Judge Karen Henderson voting no and expressing a strong dissent to the decision. Would she vote no, but without giving an official dissent to the decision. Or would it be a strong 3-0 decision against the former President, with a strong, unified opinion against the former President’s immunity claim, giving the Supreme Court some cover here and raising the possibility that they wouldn’t even take Donald Trump’s appeal here, because no new ground had been raised here and they know he would definitely lose. But perhaps the Trump’s Justices don’t want to make that official decision against him.

Based on Judge Henderson’s questioning of Donald Trump’s lawyer John Sauer, I think we’re looking at a strong 3-0 decision against the former President (not former King) and they’ll have a strong, unified opinion against the former President’s presidential immunity claim. But as I keep saying, I’m not a lawyer.

Just to correct the record on something that John Sauer said: his client Donald J. Trump, is not being prosecuted for official acts that he did when he was President. He’s being prosecuted for criminal acts that Special Counsel Jack Smith believed he committed when he was President. As well as criminal acts that Jack Smith believes he committed since leaving the presidency.”

From The New Democrat

As my colleague Kire Schneider wrote:

Michael Popok: “The Judge’s aren’t buying the impeachment argument (Donald Trump’s double jeopardy claim) and are troubled whether they even have jurisdiction as far as if they can’t even rule on this yet. I’ll just wrap it up this way, Ben. They are going to as we think, they are going to rule against Donald Trump. I think it will be 3-0. I don’t think it will go back to Judge Chutkan for anything. And I think the loser will have to take an emergency writ up to the Supreme Court.”

Ben Meiselas thinks that the Washington appeals court will rule against Donald Trump on jurisdiction grounds. Meaning that the appeals court doesn’t think they should be ruling on this case, until Donald Trump is convicted.

Ben Meiselas then goes on to talk about President Richard Nixon in 1974, who resigned the presidency before he could get impeached and convicted by Congress. Well, that goes to one of Donald Trump’s arguments having to do with double jeopardy, since the former President was impeached, but then acquitted by Congress back in 2021.

But then Meiselas also mentions that President Gerald Ford pardoned President Nixon after Nixon was already out of office, in September of 1974. But if any President has presidential immunity from prosecution while as President, why wold any President ever have to be pardoned for anything at all?

I think this is very simple. Donald Trump and his lawyers don’t have any constitutional or legal case, for why their client should be immune for anything while as President, or as a former President. They might as well just argue that Donald Trump is immune from civil litigation or prosecution, simply because he’s Donald Trump. Because that’s the quality (if you want to call it that) of their arguments right now.”

From The New Democrat

“To put this very simply: Donald Trump’s legal team doesn’t have a case. Yesterday in court, Donald Trump’s lawyers were trying to swim up stream, with just one arm and a leg. And that arm and leg was probably broken, just like their arguments and whatever case that they tried to argue in court yesterday.

Donald Trump is an American citizen just like everyone else. And like with everyone else, when there’s strong evidence that just didn’t break the law, but broke multiple laws, but just didn’t break multiple laws, but committed multiple felonies, even while as President of the United States, under Federal law and according to the U.S. Constitution as it relates to the rule of law and equal justice under law, you are supposed to be prosecuted.

If Donald Trump actually thinks that he’s innocent, or he knows he is guilty, but he thinks he can beat the case anyway, (perhaps simply because he’s Donald J. Trump) he gets prosecuted and has his day in court. And of course he can always plead guilty, or cooperate with the prosecutors to get a lighter sentence. But you don’t walk away from all of this simply because you were President of the United States, or your crimes were committed while you were President of the United States. Because that would be inconsistent with our system of rule of law, equal justice under law, and checks and balances.”

From The New Democrat

At risk of putting this in real, dramatic terms: this is what every American (Democrat, Republican, Independent, Liberal, Conservative) who believes in the rule of law, equal justice, equal rights, the U.S. Constitution, has been waiting for.

Which is that the Federal Appeals Court simply not just state the obvious here, that no American is above the law, including the President of the United States, but the former President of the United States is not above the law and once he leaves office, can be tried for crimes that go beyond his duties as President, but could also be tried for crimes that he may have committed, once he leaves the presidency.

As the appeals court ruled: Donald Trump is now citizen Trump, with the same rights and responsibilities as every other American citizen.

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