But for now, the courts have decisively rejected Trump’s novel claims, with significant implications for what lies ahead.
1. The decision was full-throated
It’s one thing to rule against Trump; it’s another to do so as decisively as the unanimous judges did. In repeatedly knocking down his claims to immunity, they served notice that it wasn’t a particularly close call.
The judges rejected Trump’s claims that allowing a former president to be criminally charged would chill the actions of future presidents, who would be constantly concerned about their own indictments. They rejected the idea that impeachment was a substitute or a necessary precursor to criminal charges for a president. And, perhaps most notably, they cast the idea of Trump’s being immune as a potentially dangerous precedent.
“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,” the judges wrote, adding: “We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”
They added later: “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.”
They said there was “no functional justification” for finding Trump immune.
The judges cast Trump as effectively saying a president should have “carte blanche to violate the rights of individual citizens to vote and to have their votes count.”
And more than that, they noted that Trump’s attempt to cling to power illustrates precisely the kind of case in which such immunity could go so badly wrong.
“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,” the judges wrote.
2. It used Trump’s and his lawyers’ own words against him
Repeatedly in the ruling, the judges pointed to the words of Trump and his own attorneys.
Mere hours before the decision, Trump on Monday night claimed that not having immunity would mean “EVERY PRESIDENT THAT LEAVES OFFICE WILL BE IMMEDIATELY INDICTED BY THE OPPOSING PARTY.” The judges, in their ruling, noted that Trump himself regularly notes that his indictments, as a former president, are unprecedented — suggesting that any fear of post-presidential indictments becoming routine is imagined or at least overblown.
(Despite this, Trump’s campaign repeated the claim in a statement after the ruling.)
The judges noted that despite Trump’s claim to absolute immunity, his own attorney effectively conceded that presidents aren’t absolutely immune; the lawyer told the judges last month that a former president could, in fact, be charged as long as he is first impeached by the House and convicted by the Senate.
They noted that Trump’s own impeachment lawyers granted that he could still be criminally charged even if acquitted by the Senate. One of those lawyers said the criminal courts were actually the more appropriate venue, given that Trump was a former president at that point.
And, finally, the judges advanced the idea that this very argument might actually have helped Trump win his impeachment acquittal.
“The forty-three Senators who voted to acquit him relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense,” the judges wrote, adding: “Indeed, at least thirty Senators who voted to acquit relied at least in part on a belief that the Senate lacked the power to convict a former president.”
In essence, the judges called Trump out for disowning the technical argument that may have won his impeachment acquittal.
3. It hamstrings Trump’s efforts to delay
It has always seemed unlikely that Trump would prevail with his novel and sweeping arguments. But the decision and its timing have some practical implications.
One is that he could face tough sledding if he asks for an “en banc” review — one in which the entire appeals court weighs in — or even looks to the more conservative-leaning Supreme Court; the decision was just that strongly against him.
Perhaps the bigger one, though, is what the decision means for the schedule of his trial. Part of the motivation for pursuing this immunity claim appears to be that it has caused delays in the trial, which was initially set for next month. (Trump has made clear he doesn’t want to face trial during the 2024 campaign.)
But the judges have now hamstrung him to some degree. They put their ruling on hold only until Monday, and it would remain on hold only if Trump appeals to the Supreme Court. That effectively means he could ask for an en banc review by the full appeals court first, but that wouldn’t prevent Judge Tanya Chutkan from pressing forward.
If Trump’s strategy is delay, one tactic has been blunted.
Trump’s campaign quickly signaled it would appeal the ruling, but it didn’t address where or when.
4. It has implications for a second Trump term
While Trump’s legal defense will suffer the most immediate impact, the ruling would also significantly affect his return to office, should he be elected.
Trump has signaled an intent to pursue a more authoritarian vision in that term, and for now the justice system is signaling that he won’t be able to pursue it unfettered.
Not content to merely reject Trump’s arguments based on the text of the Constitution and historical precedent, the judges repeatedly pointed to the practical consideration of a president’s being given such broad immunity.
They cited how he would have “carte blanche” to violate the rights of citizens and how such a thing would “collapse our system of separated powers,” and they gestured at the idea that a president could even use this immunity to cling to power by breaking the law.
It all makes sense. But the way the judges laid it out made clear just what vast power the former — and potentially future — president was really asking for.
