Trump Is Not Immune From Prosecution For 2020 Election Row, Says US Appeals Court

The decision marks the second time in as many months that judges have spurned Trump's immunity arguments and held that he can be prosecuted for actions undertaken while in the White House and in the run-up to January 6, 2021, when a mob of his supporters stormed the US Capitol.

But it also sets the stage for additional appeals from the Republican ex-president that could reach the US Supreme Court. The trial was originally set for March, but it was postponed last week and the judge didn't immediately set a new date.

“We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation,” the judges wrote.

The trial date carries enormous political ramifications, with the Republican primary front-runner hoping to delay it until after the November election. If Trump defeats President Joe Biden, he could presumably try to use his position as head of the executive branch to order a new attorney general to dismiss the federal cases or he potentially could seek a pardon for himself.

The appeals court took centre stage in the immunity dispute after the Supreme Court last month said it was at least temporarily staying out of it, rejecting a request from special counsel Jack Smith to take up the matter quickly and issue a speedy ruling.

The legally untested question before the court was whether former presidents can be prosecuted after they leave office for actions taken in the White House related to their official duties.

The Supreme Court has held that presidents are immune from civil liability for official acts, and Trump's lawyers have for months argued that that protection should be extended to criminal prosecution as well.

They said the actions Trump was accused of in his failed bid to cling to power after he lost the 2020 election to Biden, including badgering his vice president to refuse to certify the results of the election, all fell within the “outer perimeters” of a president's official acts.

But Smith's team has said that no such immunity exists in the US Constitution or in prior cases and that, in any event, Trump's actions weren't part of his official duties.

US District Judge Tanya Chutkan, who is presiding over the case, rejected Trump's arguments in a December 1 opinion that said the office of the president “does not confer a lifelong get-out-of-jail-free' pass”.

Trump's lawyers then appealed to the DC appeals court, but Smith asked the Supreme Court to weigh in first, in hopes of securing a fast and definitive ruling and preserving the March 4 trial date. The high court declined the request, leaving the matter with the appeals court.

The case was argued before Judges Florence Pan and J. Michelle Childs, appointees of Biden, a Democrat, and Karen LeCraft Henderson, who was named to the bench by President George H.W. Bush, a Republican. The judges made clear their scepticism of Trump's claims during arguments last month, when they peppered his lawyer with tough questions and posed a series of extreme hypotheticals as a way to test his legal theory of immunity — including whether a president who directed Navy commandos to assassinate a political rival could be prosecuted.

Trump's lawyer, D. John Sauer, answered yes — but only if a president had first been impeached and convicted by Congress. That view was in keeping with the team's position that the Constitution did not permit the prosecution of ex-presidents who had been impeached but then acquitted, like Trump.

The case in Washington is one of four criminal prosecutions Trump faces as he seeks to reclaim the White House this year. He faces federal charges in Florida that he illegally retained classified documents at his Mar-a-Lago estate, a case that was also brought by Smith and is set for trial in May.

He's also charged in state court in Georgia with scheming to subvert that state's 2020 election and in New York in connection with hush money payments made to porn actor Stormy Daniels. He has denied any wrongdoing.