ANGELO LYNN

A federal appeals court held Tuesday that the country should be governed as a nation based on laws, rather than governed by the dictatorial whims of an all-powerful ruler. More specifically, the federal appeals court ruled that ex-president Trump was not immune from prosecution on charges of plotting to subvert the results of the 2020 election. The court, made up of two judges appointed by Democrats and one by Republican George H. Bush, ruled unanimously that Trump must go to trial on a criminal indictment for trying to overturn the election results on Jan. 6, 2021.

Trump is expected to appeal the decision to the Supreme Court. His strategy is not that the Supreme Court would rule in his favor, but in the hopes that the court will delay its decision until after the 2024 election, and with an electoral win his newly appointed Justice Department would be asked to dismiss the charge.

That strategy makes good sense because even with a Trump-stacked Supreme Court, the court would not likely overrule the commonsense decision by the appellate court. The detailed ruling of the court explains why, as noted by the legal analyst Joyce Vance from her Civil Discourse column. In the broadest terms, the appeals court ruled that “Trump’s stance (that he has complete immunity while acting as president and for all time afterward) would collapse our system of separated powers by placing the President beyond the reach of all three Branches… We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”

The three-judge panel further wrote: “For the purposes 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.” 

That statement, Vance explains, “neatly sidesteps the issue of whether a sitting president has immunity from criminal prosecution while he’s in office… It means the appellate court’s decision is less complicated, a straight arrow that should be easy for the Supreme Court to affirm.”

Vance recalled District Court Judge Chutkan’s earlier decision in the same immunity case: “The court cannot conclude that our Constitution cloaks former Presidents with absolute immunity for any federal crimes they committed while in office.” Such a conclusion seems apparent to everyone but Trump. 

The Court of Appeals agreed with Chutkan, writing that Trump’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” 

The Appeals Court was ruthless in its verdict against Trump’s claims, particularly his frequently repeated claim on social media that the threat of prosecution after leaving office would, “hamstring a president from doing his job.” The Court of Appeals, Vance cites, not only disagreed but suggested, on the contrary, that it prevents an abuse of power. 

“Instead of inhibiting the President’s lawful discretionary action,” the court wrote, “the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. ‘Where an official could be expected to know that certain conduct would violate statutory of constitutional rights, he should be made to hesitate…’ … As the district court observed: ‘Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.’”

This is an important point in light of Trump’s contention that, as president, he should be able to send in the U.S. Navy Seals to assassinate a political opponent and not face any consequences. 

Trump further maintained the president needs immunity from prosecution of any sort because it protects the functioning of the executive branch of government, to which the Appeals Court was equally blunt:

“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,” the court ruled. “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 the Congress.” 

The court also rejected Trump’s contention that he has “unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” and refuses to accept his “apparent contention that the Executive has carte blanche to violate the right so individual citizens to vote and to have their votes count.”

Vance notes that it’s “this last bit that gets to the heart of the matter so eloquently. No president can be permitted to violate the right to vote and then successfully claim he can face no consequences for doing so. Presidential immunity in this regard would seal the fate of democracy.”

Trump’s other contentions, of putting him in double-jeopardy and saying that no president can be prosecuted unless he or she were first impeached and convicted, were even more far-fetched and dismissed. 

In short, the Appeals Court ruled against Trump on each of his claims of immunity. A clean sweep against him, Vance said, adding that the Supreme Court would not likely reverse the Appeal Court’s ruling.

“The outcome of this appeal has to be a foregone conclusion if we’re to remain a democracy,” Vance writes. “We’ve rehearsed this before — if Trump has immunity from criminal prosecution, so does every other president, including Joe Biden, who could take any steps he chooses to remain in office following the election. The real question isn’t how the Supreme Court will rule, it’s how long it will take them to rule… The issue is whether the Supreme Court will expedite its proceedings to ensure a trial as soon as possible.”

The fate of the country’s democracy likely hangs in the balance.

— Angelo Lynn