LOS ANGELES.–Ruling today in D.C.’s Fourth Circuit Court of Appeals, a three-judge panel, two Democrat appointees and one Republican, said the 77-year-old president Donald Trump could not claim presidential immunity for illegal acts to obstruct, while president, the certification of the Electoral College Vote. Shockwaves traveled quickly in Republican circles noting that Trump could, in fact, face trial for alleged illegal acts charged largely by Democrats that his followers tried to obstruct the certification of the Jan. 6, 2021 Electoral College vote. Trump’s attorneys argued to a skeptical three-judge panel Jan. 9 that Trump’s actions on Jan. 6, 2021 were not part of his official presidential business that could be subject to presidential immunity. Trump’s lawyers will certainly appeal the ruling to the Supreme Court but there’s no assurance that the High Court would take up the case.
Special Counsel Jack Smith had wanted Judge Tanya Chutkan’s District Court to try the obstruction case against Trump starting March 4 but was taken off calendar because Chutkan’s court could not determine when the appeals court would rule. In ruling against Trump on the issue of presidential immunity, whether Trump could stand trial, the three-judge panel made no finding of whether Trump was actually guilty of obstructing official government business. House Democrats, led by 83-year-old former House Speaker Nancy Pelosi (D-Calif.) opened the Jan. 6 Select Committee to determine whether Trump had participated in the Jan. 6, 2021 Capitol insurrection. After a year-and-a-half, the Jan. 6 House Select Committee determined that Trump was in fact responsible for the Jan. 6 riots. House Select Committee transmitted their findings to the Justice Department for prosecution.
Smith indicted Trump for obstruction of an official government proceeding Aug. 1, 2023, setting trial for March 4, one day before Super Tuesday, where the GOP decides who will represent the Party in the 2024 presidential election. Today’s ruling throws a monkey wrench into Trump’s plans to march toward the inevitable nomination. Former U.N. Amb. Nikki Haley, 52, got her wish that Trump now faces potentially criminal charges for acts on Jan. 6, 2021, attempting, through his supporters, to stop the Electoral College vote certification. Trump was hopeful that the three-judge appeals court panel would agree with his attorneys that he enjoyed presidential immunity. “Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review . . .” wrote the three-judge panel.
In making the ruling, the appeals court makes a sound constitutional argument against Trump’s presidential immunity claims. “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” wrote the three judges. Trump’s only hope to avoid Special Counsel Jack Smith’s prosecution is the Supreme Court. If the Supreme Court takes up the case, it could delay any trial further into the Election Year but, most likely, not delay it indefinitely. Trump’s immunity arguments gave him a reprieve on one of the two Special Counsel indictments, with the other case involving illegally possessing government property including classified documents, also on the horizon. Today’s ruling gives Nikki Haley’s campaign a shot of adrenalin, knowing that many voters will now change their minds about Trump.
Evaluating the effect of the ruling, Trump can no longer pretend that he’s not under criminal indictment because of his claim of presidential immunity. Rejecting 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,” wrote the three judge panel, rejecting Trump’s immunity claims. On the question of unlimited presidential immunity, the three-judge panel agreed with Chutkan saying Trump did not have a lifetime claim of immunity. “Nor can we sanction his apparent contention that the Executive has the carte blanche to violate the rights of individual citizens to vote and to have their votes count,” wrote the panel. That issue assumes facts not in evidence that Trump was in fact connected to the Jan. 6 mob.
Whatever the Supreme Court does next, Trump’s 2024 campaign has taken a big hit, just knowing that he could face trial over obstruction. Whether the three-judge panel went too far in saying no Executive can’t usurp the rights of voters, the Supreme Court could rule on that question in particular. On the question of presidential immunity, the three-judge panel agreed with the District Court that Trump does not have presidential immunity for acts not connected with his official presidential duties. Whatever the Supreme Court does, Trump’s campaign took a big hit today, boosting Haley’s chances heading into today’s Nevada Primary, South Carolina Feb. 24 and Super Tuesday March 4. Voters now are forced to process the growing possibility that Trump could be a convicted felon or at least face charges. Haley had a slim chance before today but now has new hope.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
