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Court rules Trump does not have immunity from prosecution

Judges J. Michelle Childs, Florence Pan and Karen LeCraft Henderson
Judges J. Michelle Childs, Florence Pan and Karen LeCraft Henderson Getty Images/AP/From ALM

The three-judge appeals court panel who issued the ruling Tuesday includes two judges, J. Michelle Childs and Florence Pan, who were appointed by Joe Biden and one, Karen LeCraft Henderson, who was appointed by George H.W. Bush.

In their unanimous opinion, the appeals court found that former President Donald Trump is not protected from criminal prosecution under the separation of powers clause.

“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,” they wrote, meaning that existing case law “provide him no structural immunity from the charges in the Indictment.”

They continued: “Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act.”

The three appeals court judges said that Trump asked them to find “for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility,” they wrote.

Some background: Trump faces four counts from special counsel Jack Smith’s election subversion charges, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty. 

Trump has argued that he was working to “ensure election integrity” as part of his official capacity as president, and therefore he is immune from criminal prosecution for trying to overturn the election results. His lawyers have also asserted that because Trump was acquitted by the Senate during impeachment proceedings, he is protected by double jeopardy and cannot be charged by the Justice Department for the same conduct.   

The immunity question is ultimately expected to end up before the Supreme Court, one of several consequential cases the high court will take up related to Trump this year. 

The district judge overseeing Trump’s criminal case in DC rejected Trump’s immunity arguments in December, writing that being president does not “confer a lifelong ‘get-out-of-jail-free’ pass.” Trump quickly appealed that decision to the DC Circuit, which agreed to expedite its review of the matter.  

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