Quick note on D.C. Circuit’s rejection of Trump’s immunity claim

Rick has linked to the opinion. I note briefly here that the unanimous per curium is a strong vindication specifically of fundamental election law principles. First, the opinions assumes for sake of argument that all of Trump’s conduct alleged in the indictment were, as he contends, “official” acts and thus potentially deserving of immunity. Nonetheless, the opinion carefully explains why, even if considered as “official” in this way, they are not entitled to immunity. Footnote 14 on page 50, the court expresses its skepticism that Trump’s alleged acts in the indictment qualify as “official” conduct of the president:

“[I]f a President who is running for re- election actsas office-seeker, not office-holder, he is not immune even from civil suits. Because the President has no official role in the certification of the Electoral College vote,much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker including allegedly organizing alternative slates of electors and attempting to the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that all five types of conduct alleged in the indictment constitute official acts.

But the court did not need to rest its decision on this point, given its determination that Trump lacks immunity from criminal prosecution even if all the alleged conduct were to qualify as official.

The court’s reasoning is important and impressive. Starting with Marbury and running through the Steel Seizure Case, among others, the court explains that a president is subject to judicial process insofar as the law constrains the president’s conduct and thus the president is not acting within a zone of executive discretion unreviewable by courts. Insofar as Congress makes certain kinds of conduct criminal, even when committed by a president, a president’s actions in violation of that criminal law are in the category of constrained by law and not within the category of unreviewable executive discretion.

The court then goes on to explain why it would be especially inappropriate to grant a president immunity for criminal conduct designed to subvert the result of the election in which the incumbent president lost a bid for reelection and the opposing candidate lawfully won the new term 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. 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.”

In this way, the court expressed the heart of the matter in this case.

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