Trump Loses Immunity Appeal

[ Posted Tuesday, February 6th, 2024 – 17:12 UTC ]

Donald Trump is still not king. That's the upshot of today's ruling from the D.C. Circuit Court of Appeals, when stripped of all the legalese. He did not enjoy some divine right to do whatever he pleased while he was president, and he does not have some "Get Out Of Jail Free" card to use now that he is not president anymore. We are a country of laws, and everyone -- up to and including current and former presidents -- must obey them or ultimately have to face the consequences in a courtroom.

The ruling, from a three-judge panel, was both unanimous and brutal. Two of the judges had been appointed by Democrats while one had been appointed by a Republican, but they all agreed that Trump's claim of absolute immunity was complete bunkum. They shot down each and every claim that Trump's lawyers had made, and eviscerated the legal reasoning as being seriously flawed. It was a sweeping refutation of Trump's outlandish claims that everything he did as president is immune from any prosecution now and forever.

This is all as it should be, since Trump's lawyers really had to bend over backwards to even come up with their harebrained arguments. The appellate judges shredded this faulty reasoning fully and completely. So completely, in fact, that this may wind up being the final word on the matter.

In the days before this ruling was handed down, journalists had begun castigating the court for not moving faster. After an expedited schedule for the arguments, the court took almost a full month before issuing its ruling. Which has been giving Trump exactly what he most desires -- a nice long delay. To make up for this, the court is now going to force Trump to move a lot faster. The three-judge panel will only allow any appeals of their decision until next Monday, after which the original court hearing Trump's January 6th case will be able to move forward once again in preparing for the trial. Trump now has two options: either appeal to the full D.C. Circuit Court for an "en banc" hearing or appeal directly to the Supreme Court. But if Trump does seek a full-court review, the trial will still move forward in the meantime. Only the Supreme Court can extend the hold on the case past next Monday. This might (as it is obviously designed to do) force Trump to appeal directly to the Supreme Court instead of dragging things out with an en banc appeal.

The opinion handed down today is exhaustive. It firmly rejects each and every claim Trump tried to make. Because it is so forceful -- and because it is unanimous -- Trump doesn't stand much of a chance of having the full appeals court overrule it anyway. His chances at the Supreme Court, however, are anyone's guess.

The Supreme Court could do any number of things, of course. The worst possible thing they could do would be to agree to hear Trump's appeal, but on a non-expedited basis. They could even decide to drag things out so long that it would guarantee Trump's trial would not take place before the election. All they'd have to do would be to extend the stay on the lower court indefinitely and then announce that their schedule for this term was already so full that they wouldn't be issuing any decision until their next term starts, in October. That would officially kill any chance of Trump being tried before the American people get to vote -- and, importantly, it would do so without their even having to rule for Trump in the case.

They might not even have to take it that far. They could agree to hear the case, and then put it on a very relaxed schedule and only issue a ruling at the end of this term, in June. This would also have the effect of probably kicking the case so far into the future that a trial wouldn't be possible before the election. Or they could hear the case fairly quickly and then take a month or so to issue any ruling, which might still allow a trial before November but would give Trump another long stretch of delay before it takes place.

The best possible outcome (at least from my point of view) would be for the Supreme Court to flat-out refuse to hear Trump's appeal. They could do so abruptly, with an unsigned short note that just says they're not going to take it up, or they could issue a statement explaining the reasoning behind not taking up Trump's appeal. Either way -- whether they expound on their reasoning or not -- the upshot would be the same. The court would affirm that the appellate court's ruling was entirely correct and therefore there just are no valid grounds for appealing it at all. This would make today's decision the final word on the subject, at least for this particular case.

I say this would be the best possible outcome for a number of reasons. First, it would be the fastest of any of the Supreme Court's options. We could get a refusal from the high court as early as next week, especially if they don't take the time to explain their reasoning and just curtly refuse to hear Trump's appeal. This would mean Trump's January 6th case could get rescheduled by the trial judge with plenty of time to try the case before the election (the original trial date of March 4th would slip, but not by an inordinate amount of time).

Second, it would avoid having the Supreme Court to weigh in on the matter, which would dodge at least one highly political case surrounding the upcoming presidential election. The Supreme Court is already set to decide whether Trump can be barred from state ballots under the Fourteenth Amendment, and there may be other appeals coming their way as well, from the multiple cases against Trump. Today's decision on presidential immunity is a pretty easy call legally, since no former president has ever attempted to make such sweeping claims before now. And the appellate court took enough time to eviscerate each and every claim Trump made, meaning rehashing it all before the Supreme Court wouldn't really even be worth the court's time.

You'll note that I am not even considering the possibility of the Supreme Court deciding in Trump's favor. That's because I consider it highly unlikely. Sure, Trump appointed three of the justices and there are two others who are so politicized that they'll probably vote in Trump's favor no matter what legal arguments he makes, but my guess is that the decision would be something like 6-3 or even 7-2 against Trump. In the first place, Trump's legal arguments are laughable. They just are. He is arguing for presidents to enjoy kingly powers, after all. And secondly, Trump's argument is a direct assault on the entire judicial system -- telling them in essence that they have no power to even question the actions of a president, even after he has left office. The Supreme Court, even this conservative one, doesn't generally take a kindly view to arguments that judges simply have no power whatsoever. This is why I feel pretty sure that Trump will ultimately lose this appeal no matter how it all plays out.

The biggest question now is how fast things are going to move. One way or another, the Supreme Court is going to have to reaffirm that presidents are indeed not kings, and that presidents cannot break the laws with impunity. There is no "Get Out Of Jail Free" card hidden somewhere in the Constitution. There is no section of the Constitution that states: "Donald Trump is allowed to do anything he pleases." America has presidents, not divinely-protected royalty. The smartest and easiest thing for the Supreme Court to do would be to shoot down Trump's appeal next week, since it seems so destined to fail anyway. The ruling issued today would be just fine as the final word on the subject, and if the Supreme Court is smart it'll just let it stand as it is.

-- Chris Weigant


Follow Chris on Twitter: @ChrisWeigant


9 Comments on “Trump Loses Immunity Appeal”

  1. [1] 
    Kick wrote:

    The opinion handed down today is exhaustive. It firmly rejects each and every claim Trump tried to make. Because it is so forceful -- and because it is unanimous -- Trump doesn't stand much of a chance of having the full appeals court overrule it anyway. His chances at the Supreme Court, however, are anyone's guess.

    I won't "guess," but I will provide a ginormous hint:

    Does anyone believe that five of those nine justices of the Supreme Court are going to grant President Biden (or any future president) unlimited immunity that would (obviously) include ordering the execution of any number of Supreme Court justices? If yes, which five?

  2. [2] 
    John From Censornati wrote:

    My guess is that they will not overrule.

    The real question is whether or not they are corrupt enough to agree to hear it and then waste lots of time Aileen Cannon-style.

  3. [3] 
    John From Censornati wrote:

    I wonder if Biden and Schumer were betting on the Orange Cult to sabotage when they were negotiating that border deal with Lankford. They know McConnell better than we do and he has whipped against his own bill in the past.

  4. [4] 
    Bleyd wrote:

    Something from the court decision that I haven't seen many people mention is that they referenced the President as an "officer" of the United States, something that might prove relevant to the case for removing him from ballots based on the 14th amendment. One of the arguments being made against doing so is that the President is not an "officer", and therefore the insurrection clause does not apply, but if this court's opinion is upheld in full, that might become something of importance in Trump's other appeals.

  5. [5] 
    nypoet22 wrote:

    in trump world the law and its interpretation don't matter, except when it's convenient to them for it to matter. if the law is on their side then it's sacrosanct, and if it's against them it's something to be changed, ignored or nullified.

  6. [6] 
    Kick wrote:

    John From Censornati

    Where have you been? [Rhetorical question meaning we missed you. :) ]

    My guess is that they will not overrule.

    Exactly. There's no way in hell they're going to grant Defendant Donald his request to retroactively be named DOTUS: Dictator of the United States... and also Joe Biden. But can four of them actually get out of their own way and allow themselves to not take the dang ruling and reword and regurgitate it? If some of them can't stop themselves from having the so-called "final word" on Trump's attempt at being made a Dictator, can five of them at least not put an abnormally long stay on the thing while they're unable to stop themselves?

    The real question is whether or not they are corrupt enough to agree to hear it and then waste lots of time Aileen Cannon-style.

    Exactly. If they can't stop themselves from weighing in, can't they at least not stop the case from moving forward. It will take five of them to agree to stay the case.

    I'm hoping the Supremes treat it exactly like Trump's attempt to have millions of ballots invalidated in multiple swing states. Remember that time in 2020 when Trump had made a phone call to Ted Cruz to personally ask him to argue a case for him at the SCOTUS? Then Traitorous Trump got Perp Paxton, Attorney of General of Texas, to file a lawsuit attempting to overturn the 2020 election by invalidating millions of votes in Pennsylvania, Michigan, Georgia, and Wisconsin? Treat it like that. :)

  7. [7] 
    Kick wrote:

    John From Censornati

    I wonder if Biden and Schumer were betting on the Orange Cult to sabotage when they were negotiating that border deal with Lankford. They know McConnell better than we do and he has whipped against his own bill in the past.

    They underestimate Biden at their own peril. He's been doing this BS for decades and knows every trick in their ever-shrinking playbook.

    So did he or did he not call their bluff? I think he saw a situation where he couldn't lose because he was willing to sign the legislation, and if they pulled their usual BS and abandoned/voted down their own bill, he was willing to allow them to make themselves look weak, spineless, and moronic... so it was a win-win from Biden's perspective no matter which path they took.

    Next up, it's on to watching the Castrated Caucus shut down the government because Trump wants to implode the economy and blame Biden for it. Lather, rinse, repeat. The GOP cannot govern because "whatever Trump wants" isn't a platform.

  8. [8] 
    Kick wrote:


    Good point. I keep hearing the argument that the President is not an "officer" and the "self-executing argument," but why should it matter whether or not the President is an "officer" when the requisite section reads thusly [emphasis added]:

    No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability.

    14th Amendment, Section 3, US Constitution

    The words "Office of the President of the United States," "Office of President," and "his Office" are mentioned numerous times all throughout the Constitution of the United States. Example:

    Before he enter on the Execution of his Office, he shall take the following Oath or Affirmation:– I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.

    Article II, Section 1, US Constitution [bold emphasis added]

    But, but, but... he's not an "Officer"?

    It's an asinine and laughable argument on its face to make the claim the President isn't an "Officer," in my opinion. The only way this section of the Constitution doesn't apply to Defendant Donald is to prove he is "no person" and/or didn't "hold any office" in the United States and didn't take the oath containing the words "Office of the President of the United States."

    Good luck with that. :)

  9. [9] 
    Kick wrote:


    Nailed it!

    The State of Colorado (indeed, every single state and the District of Columbia) runs their own elections and has their own election laws pertaining thereto; they are called ballot access laws. Trump wouldn't be the first person denied ballot access under the election laws of Colorado... not by a long shot.

Comments for this article are closed.