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L'Etat, Ce N'est Pas Moi

Many wondered why it was taking the D.C. Court of Appeals so long to answer a seemingly easy question: Is the president above the law? As it turns out, the judges were just making sure to dot every "i" and cross every "t" in their unanimous, strongly worded 57-page ruling that Donald Trump is not immune from prosecution solely by virtue of his having been president when the indictable acts took place.

Since we are not lawyers, and since we want to make sure to get this right, we asked one of our regular lawyer-correspondents, A.R. in Los Angeles, to write up an analysis:

The decision is in: Trump is not a king. The decision was unanimous and it's a "per curiam" decision, meaning that the opinion is a group effort. But given the questions at oral argument, it's clear that Judge Karen L. Henderson (a George H.W. Bush appointee) wrote most of part III (A and B), the critical analysis on executive immunity. These sections engage with the conservative case for denying Trump's claim of immunity from criminal prosecution, and it is clearly written with the current Supreme Court in mind. It's a very deft handling of some potentially sticky implications of denying immunity while outlining why legal precedent, including the seminal case of Marbury v. Madison, separation of powers principles, and the Republic's history all require that presidents be held to account for violations of criminal laws. It's a very thoughtful and legally sound approach that could convince SCOTUS to deny Trump's inevitable petition for cert (after he asks for a rehearing en banc in the D.C. Circuit, since it's all about delay).

After agreeing with the parties that the Court has jurisdiction to hear the appeal before trial, the Court first explains why Trump "misreads" Marbury. It allows that some discretionary acts of presidents could be immune from criminal prosecution but then goes on to explain how Marbury doesn't immunize presidents from all official acts. The opinion then returns to the distinction drawn in Marbury between "discretionary" acts and "ministerial" acts. The Marshall Court defined discretionary acts as political in nature and those that are accountable only in the political process. But in a president's acts that are directed by Congress, or are prohibited by law, "he is the officer of the law and is amenable to the law for his conduct." So, Marbury allows the courts to review official acts that are "legal in nature." The Court then goes on to examine 19th century cases where the courts constrained presidential acts that violated federal law. In these cases, the Courts were unwilling to "clothe... the president with a power entirely to control the legislation of Congress, and paralyze the administration of justice." Similarly, the opinion examines the Youngstown case, where the Supreme Court invalidated Harry S. Truman's executive order to seize the steel mills. The Court had the power to determine whether Truman exceeded his statutory or constitutional authority. Here it is alleged that Trump violated generally applicable laws, so such acts were not properly within his discretion. (And remember, at this stage, the Court accepts all the allegations in the indictment as true.)

While Trump argued that subjecting a president to criminal prosecution violates separation of powers principles, the Court instead holds that it's a president's criminal conduct left unchecked that would violate the separation of powers doctrine. The Court notes that legislators and judges are also subject to criminal prosecution for official acts that violate generally applicable laws. While judges and presidents are immune from civil liability for official acts, they can still be prosecuted criminally for those same acts.

In comparing judicial immunity to presidential immunity, the Court wisely cites multiple other circuit courts, presumably to show SCOTUS that there is no disagreement among the appellate courts as to the scope of immunity. The Court holds that "Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable to the Court for his conduct."

The Court then supports its analysis with policy considerations. It observes that separation of powers is best served if a president must act in accordance with the laws passed by Congress and is accountable in the courts when he does not. Checks and balances do not allow one person in one branch to usurp the functions of the other two branches, which is what Trump is arguing he has immunity to do. According to the Court, immunity would "collapse our system of separated powers by putting the president beyond the reach of all three branches." The Court also noted the broad public interest that is served in the enforcement of criminal laws.

Indeed, as president, Trump is required to "take care that the laws be faithfully executed." One of the main functions of the Executive Branch is to investigate and prosecute crimes. "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."

One of those laws is the Constitutional dictate that there is only one president at a time, who serves a 4-year term and whose term ends "at noon on the 20th day of January... and the terms of their successors shall then begin." The Court notes that the president is the only official elected "by the entire Nation." There is a particular solemnity in the quadrennial election, and it serves as a critical check on executive power because of the people's ability to vote him out of office. "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 Court also easily swatted down Trump's claims of a nebulous "chilling" effect on a president's actions if he is subject to criminal prosecution. "Every president will face difficult decisions; whether to intentionally commit a federal crime should not be one of them." And according to the Court, presidents have always understood they could be criminally prosecuted (see Nixon, Richard M., who was pardoned on his way out the door to avoid prosecution). The Court also noted all the safeguards to prevent Trump's harbingers of "politically-motivated" prosecutions, including a prosecutor's ethical obligations and the constraints on grand juries. Plus, the Court found that there is no historical support for such claims. According to the Court, any such risks are small and are significantly outweighed by the "interest to be served by allowing the prosecution of a former president to proceed."

The Court also easily dispensed with the claims that some penumbra of double-jeopardy principles precluded Trump's prosecution. The impeachment judgment clause states only that if an official is impeached and convicted, he can still be prosecuted criminally. There is no support for the claim that an official must first be impeached and convicted before he can be criminally indicted. Similarly, double jeopardy operates to preclude two criminal prosecutions for the same offense; the Court could not square Trump's argument that the absence of a conviction somehow implicates double jeopardy (hint: because it's nonsense).

Trump presumably thinks he will appeal for an en banc hearing by the full DC Circuit and, once that is denied, petition for cert to the Supreme Court. However, the court has reportedly only given Trump until Feb. 12 to appeal to the Supremes, which does not leave time for an en banc hearing. So, if the reports are correct, that will speed things up. It would speed things up even more if SCOTUS decides that yesterday's opinion is definitive, and therefore there is no need for them to hear the case. But will that happen? Remember that it only takes four justices to take up a case; Samuel Alito and Clarence Thomas will, of course, vote to grant cert. The only question is whether there are two more votes to take up the case, which, even if SCOTUS ultimately upholds the appellate court's decision, will nonetheless give Trump the real prize of delaying the trial even further. And if the Court grants cert, but then does not expedite the process (in other words, puts the case on their regular calendar), then the delay will last until after the election, which is the former president's dream outcome.

Thanks, A.R.!

So, the ball is apparently now in the Supremes' court. Keeping in mind that they already have another tough Trump case on the docket (whether the Fourteenth Amendment disqualifies him from the ballot), Chief Justice John Roberts and his more moderate brethren might not want to take on hot potato #2. We'll presumably learn sometime later this month. Meanwhile, Trump should get used to the idea that he is not Louis XIV, and that "L'État, ce n'est pas moi": I am NOT the state (and note that we checked that with a native French speaker; thanks E.K. in Brignoles, France!). (Z)

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