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A federal appeals panel has ruled Donald Trump can face trial on charges that he plotted to overturn the results of the 2020 election, rejecting the former United Statespresident’s claims he is immune from prosecution and breathing life back into a landmark prosecution that had been effectively frozen while the court considered the arguments.
The decision yesterday (overnight AEDT) marks the second time in as many months that judges have spurned Trump’s immunity arguments and held that he can be prosecuted for actions undertaken while in the White House and in the run-up to January 6, 2021, when a mob of his supporters stormed the US Capitol.
But it also sets the stage for additional appeals from the Republican ex-president that could reach the US Supreme Court and result in further delays.
The one-month gap between when the appeals court heard arguments and when it issued its ruling has already created uncertainty about the timing of any trial in a calendar-jammed election year, with the judge overseeing the case last week cancelling the March 4 date that was initially set and not immediately scheduling a replacement one.
The judges gave Trump until February 12 to ask the Supreme Court to pause the ruling.
The trial date carries obvious and enormous political ramifications, with special counsel Jack Smith’s team hoping to prosecute Trump this year and the Republican primary front-runner seeking to delay it until after the November election.
If Trump were to defeat President Joe Biden, he could presumably try to use his position as head of the executive branch to order a new attorney general to dismiss the federal cases or he potentially could seek a pardon for himself.
The unanimous ruling, which had been expected given the scepticism with which the three judges on the panel greeted the Trump team’s arguments, was unsparing in its repudiation of the claim that a former president could be shielded from prosecution for actions taken while in office.
“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,” the judges wrote.
They also sharply rejected Trump’s claim that “a president has unbounded authority to commit crimes that would neutralise 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,” they wrote.
The appeals court took centre stage in the immunity dispute after the Supreme Court in December said it was at least temporarily staying out of it, rejecting a request from Smith’s team to take up the matter quickly and issue a speedy ruling. But the court could yet still decide to act on a Trump team appeal, adding to the uncertainty of a trial date.
The Supreme Court has held that presidents are immune from civil liability for official acts, and Trump’s lawyers have for months argued that that protection should be extended to criminal prosecution as well.
They said the actions Trump was accused of in his failed bid to cling to power after he lost the 2020 election to Biden, including badgering his vice president to refuse to certify the results of the election, all fell within the “outer perimeters” of a president’s official acts.
But Smith’s team has said that no such immunity exists in the US Constitution or in prior cases and that, in any event, Trump’s actions weren’t part of his official duties.
US District Judge Tanya Chutkan, who is presiding over the case, rejected Trump’s arguments in a December 1 opinion that said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass”.
Trump’s lawyers then appealed to the DC appeals court, but Smith asked the Supreme Court to weigh in first, in hopes of securing a fast and definitive ruling and preserving the March 4 trial date. The high court declined the request, leaving the matter with the appeals court.
The case was argued before Judges Florence Pan and J Michelle Childs — appointees of Biden, a Democrat — and Karen LeCraft Henderson, who was named to the bench by President George HW Bush, a Republican.
The judges made clear their scepticism of Trump’s claims during arguments last month, when they peppered his lawyer with tough questions and posed a series of extreme hypotheticals as a way to test his legal theory of immunity — including whether a president who directed Navy commandos to assassinate a political rival could be prosecuted.
Trump’s lawyer, D John Sauer, answered yes — but only if a president had first been impeached and convicted by Congress. That view was in keeping with the team’s position that the Constitution did not permit the prosecution of ex-presidents who had been impeached but then acquitted, like Trump.
The case in Washington is one of four criminal prosecutions Trump faces as he seeks to reclaim the White House this year.
He faces federal charges in Florida that he illegally retained classified documents at his Mar-a-Lago estate, a case that was also brought by Smith and is set for trial in May.
He’s also charged in state court in Georgia with scheming to subvert that state’s 2020 election and in New York in connection with hush money payments made to porn actor Stormy Daniels. He has denied any wrongdoing.
