Trump not immune from election subversion charges, US appeals court rules

6 Feb 2024

The ruling, which the former US president is almost certain to appeal against, rebuffs his attempt to avoid a trial on charges that he undermined US democracy and the transfer of power, even as he consolidates his position as the frontrunner for the Republican presidential nomination.

A US federal appeals court ruled on Tuesday that Donald Trump does not have immunity from charges that he plotted to overturn his 2020 election defeat, bringing the former US president a step closer to an unprecedented criminal trial.

A three-judge panel of the US Court of Appeals for the District of Columbia Circuit rejected Trump’s claim that he cannot be prosecuted because the allegations relate to his official responsibilities as president.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defences of any other criminal defendant,” the unanimous panel wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The ruling, against which Trump is almost certain to appeal, rebuffs his attempt to avoid a trial on charges that he undermined US democracy and the transfer of power, even as he consolidates his position as the frontrunner for the Republican presidential nomination.

The case will remain paused until at least 12 February to give Trump time to appeal to the US Supreme Court.

Trump’s lawyers argued that former presidents were entitled to sweeping legal protections and could not be criminally prosecuted for official actions unless first impeached by the House of Representatives and removed from office by the Senate.

Trump was impeached twice by the House, but each time Senate Republicans cast sufficient votes to acquit him of the charges.

Jack Smith indictment

Judges homed in on the broad nature of Trump’s claim at a 9 January hearing, questioning a Trump lawyer over whether even a president who ordered military commandos to assassinate a political rival could escape criminal prosecution without initial action by Congress.

Trump has repeatedly voiced his immunity claim on the campaign trail and social media, saying in an 18 January post, “ALL PRESIDENTS MUST HAVE COMPLETE & TOTAL PRESIDENTIAL IMMUNITY, OR THE AUTHORITY & DECISIVENESS OF A PRESIDENT OF THE UNITED STATES WILL BE STRIPPED & GONE FOREVER.”

The indictment brought by Special Counsel Jack Smith accuses Trump of using false claims of voter fraud to pressure state legislators, Justice Department officials and the then vice-president Mike Pence to thwart the certification of the election results. It is one of four criminal cases facing Trump and one of two alleging interference in the 2020 election.

Trump has pleaded not guilty to four felony counts and accused prosecutors of a politically motivated effort to damage his campaign.

The immunity argument was previously rejected by US District Judge Tanya Chutkan in December, prompting Trump to appeal.

Even if Trump’s argument is not accepted by courts, the appeal is likely to achieve his aim of delaying the scheduled 4 March trial and potentially pushing it until after the November election. The case is on hold while Trump appeals.

If Trump wins the election, he could seek to pardon himself or direct the Justice Department to shut down the case.

Trump can ask the full DC Circuit court and the US Supreme Court to review the ruling, potentially leading to weeks or months of additional delay. DM

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Jack Smith indictment