Tweet Share Share Comment On Tuesday, the U.S. Court of Appeals for the D.C. Circuit decisively rejected Donald Trump’s bid to evade prosecution for his alleged efforts to overturn the 2020 election. The three-judge panel’s decision cleared the way for the former president to face trial for his alleged crimes—that is, if the Supreme Court does not help him run out the clock. On a bonus Slate Plus episode of Amicus, Dahlia Lithwick discussed one important, widely overlooked aspect of the court’s opinion with her colleagues Mark Joseph Stern and Jeremy Stahl. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: The D.C. Circuit gave us this beatdown of an opinion that decisively rejected and rebuked Trump’s claim that he’s immune from any criminal prosecution based on principles of separation of powers. It was a per curiam opinion, unsigned, joined by two Biden appointees and a George H.W. Bush appointee who had been pretty generous with some of Trump’s previous claims. The case itself can be a quagmire of criminal procedure and jurisdictional questions, but the holding is pretty unequivocal. It doesn’t seem to leave a lot of wiggle room.
I want to talk about one part of this case we haven’t discussed: how the court was pretty emphatic in differentiating between the immunity that might have been available to Trump as president and the immunity now available to “former President Trump”—or “citizen Trump,” as the court calls him. I think a lot of this opinion is rooted in the fact that we’re discussing “citizen Trump.” Do you have any thoughts about how much that matters and how it might matter going forward?
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Jeremy Stahl: I’ll go back to the stakes of what Trump was arguing, which were laid out very clearly by the three-judge panel during oral arguments in this case. Trump is essentially saying that a president can commit any sort of crime as long as it’s within the color of his official duties. And during arguments, Judge Florence Pan asked this hypothetical question: Could a president commit bribery? Could a president order SEAL Team Six to assassinate a political rival? And Trump’s lawyer had no good answer to that question. His answer was: If the president is impeached and convicted, he couldn’t get away with that. But if he weren’t impeached and convicted, yes, he could get away with it.
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So, say the president commits a crime that goes undiscovered until he’s left office. As the judges note in their opinion, Trump’s argument would make him completely immune from any sort of accountability for that crime, no matter how horrendous it is. The opinion takes into account the breadth and depth of what Trump was asking this court to do. And it also points to how much he’ll be asking of this Supreme Court.
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Read More Mark Joseph Stern: I’ll just add a few points. First, Trump refers to himself as President Trump. His lawyers call him President Trump in the briefings for this case and every other case. His supporters still refer to him as President Trump, leaving out the “former” part. Now, the D.C. Circuit’s opinion takes pains to say that this guy lost the election. It leaves other factual findings for a jury to decide, but it’s pretty straightforward in saying that Trump lost in 2020. He is no longer president. And I think Trump and his lawyers tried to infuse this case with a hazy kind of assertion that this was affecting a guy who rightfully should still be president, that he has some rightful claim to office. And that this claim just exacerbates the illegitimately of the charges brought by the interloper, Joe Biden, along with his Justice Department—who, in Trump’s view did not earn the power that they now wield. I do feel that this was an important brush back for the court to make.
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On a more technical note, the Supreme Court dealt with a lot of cases involving investigations into Donald Trump during his actual presidency, when he really was in the White House. In those cases, the Supreme Court tended to be a little ambiguous in rendering judgment. You didn’t get slam-dunk wins for or against Trump. Instead, you got these balancing tests where the court would say, “Well, we have to be cognizant of how the president exercises his crucial duties. It’s so important to respect his Article 2 powers, his ability to take care that the law be faithfully executed. We cannot let another branch of government, like Congress or the judiciary, unduly interfere with his discharge of those duties, blah, blah, blah.” And it ended up being a muddle, and very little was actually accomplished because of that.
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The D.C. Circuit’s opinion, by contrast, takes pains to say: “This guy’s not in office, so none of that matters at all. Whatever implications there might be for the prosecution of a sitting president, whatever constitutional problems might arise under Article 2, they are not present here. And the fact that he is running for reelection and wants to assume the White House again is irrelevant to this case. All we are looking at is a private citizen who is accused of committing crimes that are generally applicable to everybody.”
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Stahl: They also said, very explicitly, that they were weighing a president’s interests in not having to be worried about facing prosecution after he leaves office. They weighed the concern that there might be a retaliatory series of escalating prosecutions against former presidents by new presidents. The court said, “This risk is unproven, and it has to be weighed against the greater public interest in a peaceful transfer of power, in our democracy and our ability to choose our officeholders. We have to weigh this hypothetical risk that Trump cites against the reality of what Trump is actually accused of doing, and what it means to hold him to account for that.” And they very clearly decided one set of interests was much more weighty than the other.
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Lithwick: It’s abundantly clear that all eyes are now going to be on the Supreme Court. Mark, we wrote about how this is the monarchic court that weighs in to everything and can’t give the D.C. Circuit the last word. I was really struck by the ways in which arguments for a monarchic executive will now reach a monarchic court, which will choose whether or not to weigh in. This Supreme Court is just not going to be apt to say: “You know what? We’re gonna be humble and do the right thing and stand down.” This is the court for whom humility is just not a watch word. I’m thinking of King Kong vs. Godzilla, two utterly monarchic institutions going at it.
Stern: It seems that with these two titans clashing, the losers are always going to be the members of that other branch, right? Congress? Remember Congress? Congress spent four years actually trying to uncover some of these bad deeds that are only now coming to light, and got repeatedly shut out by the president and the courts. Because increasingly, the executive and the judiciary are the only two branches that matter.
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Tweet Share Share Comment On Tuesday, the U.S. Court of Appeals for the D.C. Circuit decisively rejected Donald Trump’s bid to evade prosecution for his alleged efforts to overturn the 2020 election. The three-judge panel’s decision cleared the way for the former president to face trial for his alleged crimes—that is, if the Supreme Court does not help him run out the clock. On a bonus Slate Plus episode of Amicus, Dahlia Lithwick discussed one important, widely overlooked aspect of the court’s opinion with her colleagues Mark Joseph Stern and Jeremy Stahl. Their conversation has been edited and condensed for clarity.
Dahlia Lithwick: The D.C. Circuit gave us this beatdown of an opinion that decisively rejected and rebuked Trump’s claim that he’s immune from any criminal prosecution based on principles of separation of powers. It was a per curiam opinion, unsigned, joined by two Biden appointees and a George H.W. Bush appointee who had been pretty generous with some of Trump’s previous claims. The case itself can be a quagmire of criminal procedure and jurisdictional questions, but the holding is pretty unequivocal. It doesn’t seem to leave a lot of wiggle room.
I want to talk about one part of this case we haven’t discussed: how the court was pretty emphatic in differentiating between the immunity that might have been available to Trump as president and the immunity now available to “former President Trump”—or “citizen Trump,” as the court calls him. I think a lot of this opinion is rooted in the fact that we’re discussing “citizen Trump.” Do you have any thoughts about how much that matters and how it might matter going forward?
Advertisement Jeremy Stahl: I’ll go back to the stakes of what Trump was arguing, which were laid out very clearly by the three-judge panel during oral arguments in this case. Trump is essentially saying that a president can commit any sort of crime as long as it’s within the color of his........
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