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Donald Trump Does Not Have Immunity From Prosecution In January 6th Case, Appeals Court Rules

Former President Donald Trump’s efforts to sideline one of his criminal cases was dealt a blow today, as a three-judge panel rejected his claims of immunity from prosecution over his efforts to remain in power after the 2020 presidential election.

“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution,” the three D.C. Circuit Court of Appeals judges wrote in their unanimous decision.

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Trump’s attorneys had argued that he could not face four election conspiracy charges because, as president at the time, he had immunity. Their claims put a pause on a trial as the question has worked its way through higher courts.

“We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that ‘[c]oncerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case,” the judges wrote.

Read the Trump immunity decision.

Trump’s attorneys now can ask a larger en banc panel of the D.C. circuit to review the case, or ask the Supreme Court to weigh in. The appeals court gave Trump until Feb. 12 to ask the Supreme Court to stay the ruling pending its filing of a petition for a writ of certiorari.

Last week, U.S. District Judge Tanya Chutkan, who is presiding over the election conspiracy case, took the March 4 trial date off the calendar. Once the stay on the appeals court ruling is lifted, she can resume proceedings in the case.

The appellate judges wrote, “Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the President has no role — the counting and certifying of the Electoral College votes — thereby undermining constitutionally established procedures and the will of Congress. To immunize former President Trump’s actions would ‘further … aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.'”

Two of the judges on the panel, Florence Pan and Michelle Childs, were appointed by President Joe Biden. The third, Karen Henderson, was appointed by George H.W. Bush.

“We cannot accept former President 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,” they wrote. “Nor can we sanction his apparent contention that the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”

The Supreme Court on Thursday will hear oral arguments in another case, on whether Trump can be kept off the ballot in Colorado. That state’s Supreme Court ruled that Trump was ineligible under Section 3 of the 14th Amendment, which has to do with those who participate in an insurrection against the U.S. government.

Steven Cheung, spokesman or Trump’s campaign, said in a statement, “If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a president of the United States would not be able to properly function!” He said that they would appeal.

Trump’s attorneys had argued that Trump’s conduct was part of his official acts as president.

The judges, though, cited Marbury vs. Madison in concluding that although “certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is ‘amenable to the laws for his conduct’ and ‘cannot at his discretion’ violate them.”

“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; accordingly, Marbury and its progeny provide him no structural immunity from the charges in the Indictment.”

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