An Airtight Ruling Against Trump


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On July 24, 1974, when the Supreme Court issued its decision in United States v. Nixon, ordering President Richard Nixon to produce the Watergate tapes, the president turned to his chief of staff, Alexander Haig, to understand what had just happened. He later recounted the exchange in his memoirs:

“Unanimous?” I guessed.

“Unanimous. There’s no air in it at all,” he said.

“None at all?” I asked.

“It’s tight as a drum.”

These words echoed through my mind today, nearly 50 years later, as I read the historic opinion of the United States Court of Appeals for the District of Columbia Circuit in United States v. Trump, holding that former President Donald Trump does not enjoy immunity from prosecution for any crimes he committed in attempting to end constitutional democracy in the United States.

The result was no surprise. As I said last month, no one who attended the oral argument could have believed Trump had any chance of prevailing. The question was timing: How long would an appeal delay Trump’s trial, originally scheduled for March 4? Many of us thought that the decision might come sooner, perhaps within days of the argument, given how quickly the court had scheduled briefing and argument. And by the end of last week, some commentators had, by their own reckoning, reached the “freakout stage” as to why the decision was taking so long.

They—and we—needn’t have worried. Issued exactly four weeks after the argument, the court’s decision came plenty fast. It’s not that often that you get a unanimous 57-page decision on novel questions of law in 28 days. And you almost never get an opinion of this quality in such a short period of time. I’ve read thousands of judicial opinions in my four decades as a law student and lawyer. Few have been as good as this one.

Unanimous. No air. Tight as a drum. The court’s per curiam opinion—per curiam meaning “for the court,” in that no individual judge authored it—is all that and more. It’s a masterful example of judicial craftsmanship on many levels. The opinion weaves together the factual context, the constitutional text, the judicial precedent, history, the parties’ concessions, and razor-sharp reasoning, with no modicum of judicial and rhetorical restraint, to produce an overwhelmingly cohesive, and inexorably convincing, whole. The opinion deserves a place in every constitutional-law casebook, and, most important—are you listening, members of the Supreme Court?—requires no further review.

The opinion far exceeds any commentator’s poor power to add or detract, so I’ll mostly let it speak for itself. The bottom line:

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.

As the opinion explains, Trump asked the court to “extend the framework for Presidential civil immunity to criminal cases and decide 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.” Trump argued principally that two considerations compelled such an extraordinary protection: first, that judges are somehow prohibited from reviewing discretionary presidential acts and, second, that policy considerations flowing from the separation of powers required categorical immunity for presidents from criminal prosecution.

The court dismantled these claims patiently, painstakingly, and unsparingly. The first it disposed of with an impeccable discussion of the basic constitutional law of judicial review. Trump invoked, of all cases, the Supreme Court’s 1803 decision in Marbury v. Madison, the fountainhead of the judicial power to pass judgment on the constitutionality and legality of governmental action. At one point in that decision, as Trump’s counsel emphasized, Chief Justice John Marshall noted that when the executive exercises discretionary authority, his or her actions “can never be examinable by the courts.”

But Marshall said something else as well, the D.C. Circuit observed. The executive remains an “officer of the law,” and “is amenable to the laws for his conduct,” Marshall wrote, with emphasis added by the D.C. Circuit. And so “the judiciary has the power to hear cases ‘where a specific duty is assigned by law.’ Marbury thus makes clear that Article III courts may review certain kinds of official acts,” including the president’s. The court added a little tour of the history books, citing the famous “Steel Seizure Case,” Youngstown Sheet & Tube Co. v. Sawyer, the 1952 decision in which the Supreme Court struck down President Harry S. Truman’s executive order seizing control of most of the country’s steel mills. That case, together with Marbury, the court explained, led to the conclusion in yet another case (Clinton v. Jones), that “when the President takes official action, the [courts have] the authority to determine whether he has acted within the law.” And so:

The separation of powers doctrine … necessarily permits the Judiciary to oversee the federal criminal prosecution of a former President for his official acts because the fact of the prosecution means that the former President has allegedly acted in defiance of the Congress’s laws … 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.

As for Trump’s second argument, the contention that policy considerations underlying the doctrine of separation of powers required an expansive criminal immunity, the D.C. Circuit did what the Supreme Court has done in assessing claims of civil immunity: weighed the considerations for immunizing the president against those opposing such immunization.

In engaging in that analysis, the appeals court did something very important, from the standpoint both of bolstering its conclusion and of insulating its decision from Supreme Court review. The panel, as smart judges do, limited its analysis to the specific “case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term” (emphasis mine).

And so the balancing question became: Does the nation’s interest in protecting democracy outweigh the danger that potential post-presidency prosecution might deter presidents from doing their job? When posed that way, the question admitted of only one possible answer: yes—by a country mile.

Trump’s professed fear that “floodgates” might open, allowing meritless and harassing prosecutions of former presidents, bore no relation to historical and practical reality, the court reasoned. There would be no such floodgates: “Former President Trump acknowledges this is the first time since the Founding that a former President has been federal indicted.” The concession brilliantly extracted by Judge Florence Pan at the oral argument was invoked with devastating effect: “Even former President Trump concedes that criminal prosecution of a former President is expressly authorized” if he has previously been impeached and removed by Congress. And the clincher was a quote from the district court: “Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”

None of Trump’s concerns could outweigh what was on the other side of the scale. Citing United States v. Nixon, among other cases, the D.C. Circuit emphasized that “the public has a fundamental interest in the enforcement of criminal laws.” Indeed, it would make no sense for the president, charged with enforcing laws, to be immune from them:

It would be a striking paradox if the President, who alone is vested with the constitutional duty to “take Care that the laws be faithfully executed,” were the sole officer capable of defying those laws with impunity.

But there was even more, the court explained. The public interest at issue in the case was not simply the enforcement of criminal law; it was the enforcement of criminal law against an alleged scheme directed at nothing less than the destruction of American constitutional democracy.

Hence the judicial coup de grâce:

The quadrennial Presidential election is a crucial check on executive power because a President who adopts unpopular policies or violates the law can be voted out of office.

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 …

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. 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.

At bottom, former President Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches. Presidential immunity against federal indictment would mean that, as to the President, the Congress could not legislate, the Executive could not prosecute and the Judiciary could not review. We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.”


The opinion—every jot, title, footnote, and citation of it—is worth your time to read.

And it was worth the court’s time to write. Not just for our benefit, but for the benefit of justice. By writing such a strong opinion, the D.C. Circuit may have hastened the day that Donald Trump will finally face consequences for seeking to block the peaceful transition of presidential power.  

In its judgment accompanying its opinion, the appeals court took an additional important step in moving Trump’s case to trial. It essentially set a deadline of next Monday for Trump to seek relief from the Supreme Court. The court of appeals directed that, by February 12, if Trump does not ask the Supreme Court to halt proceedings in the district court, those proceedings should recommence immediately.

Which means that Trump’s lawyers have to take their case to the Supreme Court—by filing an application for a stay—by next Monday. And the Department of Justice will surely respond almost immediately.

What will the Supreme Court do? The strength of today’s opinion makes it far more likely that the Court will do … nothing. Any court—including the Supreme Court—would have a tough time writing a better opinion than the one the D.C. Circuit published today. The best course of action would be for the Supreme Court to deny a stay, and to deny review altogether, in a matter of days.  

And that could mean a trial in United States v. Trump no later than early summer. That’s what a unanimous, airtight opinion can do.



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