The Supreme Court justices won’t be able to reject with...

The Supreme Court justices won’t be able to reject with a straight face the appellate court’s common-sense conclusions on the former president's lack of immunity from criminal prosecution. Credit: AP/Jose Luis Magana

It just got harder for the Supreme Court to save Donald Trump from criminal prosecution for his involvement with the violence at the Capitol on Jan. 6, 2021. In a straightforward opinion, a unanimous panel of the U.S. Court of Appeals for the DC Circuit rejected Trump’s claim that a former president should be immune from being prosecuted criminally for conduct undertaken while in office.

The opinion is strong enough that it is unlikely to be reconsidered by the full DC Circuit. When the case goes to the Supreme Court, as it almost certainly will, the justices won’t be able to reject the appellate court’s common-sense conclusions with a straight face. And the issues are so straightforward that it would be embarrassing for the high court to delay long enough to push Trump’s criminal trial until after November’s election — after which, if Trump wins, he could dismiss the charges.

In rejecting Trump’s immunity arguments, the DC Circuit panel, made up of two Democratic appointees and one pre-Trump Republican, went back to the basics of American constitutional law. The court cited Marbury v. Madison, the great granddaddy of all constitutional decisions. In that 1803 case, the Supreme Court first held that it had the authority to consider the constitutionality of congressional acts.

In Marbury, Chief Justice John Marshall, still the greatest chief justice in US history, stated that when Congress imposes specific duties on the president, he becomes “the officer of the law” and “is amenable to the laws for his conduct.” From this it followed, said the DC Circuit, that a president who violated criminal laws laid down by Congress could not claim that his status as head of the executive branch gave him a free pass to violate those laws.

For good measure, the court quoted a later Supreme Court opinion, US v. Lee, which explained that “no man in this country is so high that he is above the law.” The law, that 1882 opinion stated, “is the only supreme power in our system of government.” It would be hard to find more ringing endorsement of the principle of the rule of law. The DC Circuit was making the point that, by claiming immunity, Trump was trying to set himself up as above the law, thus violating the most basic principle of legality itself.

The DC Circuit also made short work of Trump’s supposed policy reasons to protect a former president from prosecution. Trump’s lawyers have been making the genuinely outrageous claim that if a president can be criminally prosecuted, then every president should expect to be prosecuted by his successor.

In response, the DC Circuit pointed out that no president has ever been criminally prosecuted, whether by his successor or anyone else. (Richard Nixon was pardoned by Gerald Ford and Bill Clinton signed a deal with the independent prosecutor in exchange for not being prosecuted.) The truth is that Trump’s argument is little more than a thinly veiled threat against Joe Biden.

Finally, the court eviscerated what might be Trump’s worst argument, namely that a former president can only be charged criminally if he was previously impeached and removed from office for the relevant conduct. The court noted that Trump had argued the exact opposite during his impeachment after Jan. 6 — that if he wasn’t impeached or removed from office, he could still be prosecuted criminally.

And more fundamentally, the court pointed to the text of the Constitution, which says that judgment in an impeachment case “shall not extend further than to removal from office, and disqualification to hold … any office … under the United States.” Then the same provision goes on to say: “But the party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to the law.”

Trump claimed that the phrase “the party convicted” implies that the president can only be tried criminally if he was convicted — and removed from office — by the Senate. The court correctly rejected that forced reading. The constitutional provision in context obviously means that even a president impeached by the House of Representatives and convicted by the Senate can be subject to subsequent criminal trial.

The upshot is that, by showing the empty legal logic of Trump’s immunity claims, the DC Circuit boxed in the Supreme Court.

In theory, the justices could still slow-walk Trump’s case when it comes to them, thus running out the clock before the election. But the appellate opinion raises the embarrassment factor for the Supreme Court should it try that tactic. In the absence of good legal arguments on Trump’s side, the Supreme Court should move quickly.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners. Noah Feldman is a Bloomberg Opinion columnist. A professor of law at Harvard University, he is author, most recently, of “The Broken Constitution: Lincoln, Slavery and the Refounding of America.”

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