On Tuesday, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit announced its decision in United States v. Trump, on the issue of the former president’s immunity — or lack thereof — from federal criminal prosecution. The panel doesn’t have it.
“We cannot accept the Office of the Presidency placing its former occupants above the law forever,” the opinion reads. “Former President Trump had no discretionary legal authority to defy federal criminal law and is accountable in court for his conduct,” the judges added.
Of course, this is not the end of Trump’s journey. He will appeal the decision, and the case will almost certainly be taken up by the Supreme Court, where our eminent tribunal will decide whether the former president is immune from criminal prosecution for illegal acts committed in office under the auspices of executive authority.
It may be tempting to set aside the jury’s opinion, knowing that the story isn’t over yet. But you shouldn’t. It’s a fascinating document, not least because the judges provide a comprehensive portrait of the radicalism of Trump’s request for executive immunity.
In short, the former president claims that he has “absolute immunity from criminal prosecution for all ‘official acts’ performed in his capacity as president,” a claim that is based on the constitutional doctrine of the separation of powers. As his lawyers wrote in their brief: “The president is invested with executive power. The judiciary cannot make judgments, criminal or otherwise, on the exercise of that power by him.” The rest of the argument – from constitutional text, history and practical governance considerations – flows from this point.
It is true, the panel said, that “the Supreme Court has explained that a former president is absolutely immune from civil liability for his official acts.” This includes acts that fall within the “outer perimeter” of his official responsibilities. What Trump wants is for courts to “extend the framework of presidential civil immunity to criminal cases and decide for the first time that a former president is categorically immune from federal criminal prosecution for any conceivable act within the outer perimeter of his responsibility executive”.
The committee said, simply put, no. The separation of powers, he explains, does not “prevent the federal prosecution of a former president.” Everything is fine official act”. The federal judiciary, as Chief Justice John Marshall wrote in his Marbury v. Madison in 1803, can hear cases “in which a specific duty is assigned by law,” meaning that federal courts can review “certain kinds of official acts, including those of a legal nature.”
Official acts of a legal nature include the president’s constitutional duty to faithfully apply the laws, which, the commission noted, “includes respecting legal procedures for determining election results and ensuring that executive power is vested in the new president at constitutionally established moment.”
If the president decides to subvert those laws instead, then obviously the courts can hold him accountable. It would be perverse, to the point of undermining the very idea of constitutional government, for the president to have the power to defy the law as he chooses.
This is especially true, the panel stressed, when it comes to presidential elections, one of the most important checks on presidential conduct and presidential power.
This is crucial. One of the most powerful, if often strident, arguments of the Constitution’s Anti-Federalist opponents was that the presidency—a strong executive branch that would work in concert with a small, elitist Senate—was a time bomb at the heart of republican government. .
“The office of President of the United States seems to me to be endowed with dangerous powers,” declared one such opponent, writing under the pseudonym An Old Whig. The power of the presidency was so great and the esteem of the office so high, he continued, that no man would give it up. “It will cost a man many struggles to resign such eminent powers, and we will ere long find some who will be very reluctant to part with him.” (Score one for An Old Whig.)
George Clinton, a prominent Anti-Federalist (later governor of New York and then vice president under Thomas Jefferson and James Madison), agreed. “It is…obvious to the less intelligent mind to explain why great power in the hands of a magistrate, and that power connected with considerable duration, may be dangerous to the liberties of a republic,” Clinton wrote, under the pseudonym Cato . . “If the president is ambitious,” he continued, “he has enough power and time to ruin this country.”
Supporters of the Constitution did not deny that the office was very powerful. But this, they explained, is why elections are so important. Rejecting the Anti-Federalist charge that the president’s powers were indistinguishable from those of a king, Alexander Hamilton explains in Federalist 69 that “The president of the United States would be a popularly elected official for FOUR years; the King of Great Britain is a perpetual and HEREDITARY prince. The one would be susceptible to personal punishment and dishonor; “the person of the other is sacred and inviolable”.
Similarly, New Jersey Federalist John Stevens Jr. argued, under the pseudonym Americanus, “By the way the President is elected, it must be recognized that he is available to the people and that he can be removed from office when he misapplies the powers entrusted to him”.
“It is a universally true maxim,” he concluded, “that power, which creates, can also destroy.”
The American system collapses if the president, with absolute legal immunity, can interfere with the electoral process itself. It is for this reason that the commission condemns, in no uncertain terms, Trump’s assertion of inexplicable power. “We cannot accept former President Trump’s assertion that a president has unlimited authority to commit crimes that would neutralize the most fundamental check on executive power: the recognition and enforcement of election results.”
Trump’s demand for blanket executive immunity is not only unconstitutional; it is unconstitutional and incompatible with the rule of law. A president with that kind of power is no longer a president but a king.
