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Explainer | What’s next after Donald Trump was denied immunity from criminal charges

  • Donald Trump has until February 12 to appeal court ruling to the US Supreme Court
  • Tuesday’s ruling affirms former president is no different legally than any other US citizen
Donald Trump
Donald Trump’s appellate court loss on whether he’s immune from prosecution moves him closer to standing trial for trying to overturn the 2020 election even as he campaigns for the presidency again.

The ruling on Tuesday affirms a central point made by prosecutors – the former US president is no different legally than any other citizen.

But the three-judge panel of the US Court of Appeals for the DC Circuit may not have the last word.

The ruling against Trump, the front runner for the Republican nomination, is on hold until February 12 for him to appeal to the US Supreme Court. He might also ask the full DC Circuit to rehear the case. Neither court is required to take up his appeal.

Trump supporters storming the US Capitol in Washington on January 6, 2021. File photo: AP

Special Counsel Jack Smith is pushing to put Trump on trial about his actions to overturn President Joe Biden’s victory, culminating in the riot on January 6, 2021, at the US Capitol.

Trump’s campaign immediately started fundraising off the ruling and his spokesman Steven Cheung issued a warning.

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“If immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party,” Cheung said. “Without complete immunity, a president of the United States would not be able to properly function!”

Here are some key takeaways of the ruling:

‘Citizen Trump’

In its unanimous ruling, the panel found that Trump can’t claim that the office of the presidency protects him from prosecution.

“Former president Trump has become citizen Trump, with all of the defences of any other criminal defendant. But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

‘Unprecedented Assault’

The panel ruled that Trump’s alleged actions to stay in power, if proven, were “an unprecedented assault on the structure of our government. He allegedly injected himself into a process in which the president has no role – the counting and certifying of the Electoral College votes – thereby undermining constitutionally established procedures and the will of the Congress.”

To immunise him further would “aggrandise the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress”.

Then-President Donald Trump on January 6, 2021. File photo: TNS

‘Carte Blanche’

As the head of state, the president stands far above anyone else in public life, with unrivalled power that can cancel out those who are supposed to check his power, according to the panel. Still, that power is limited over elections, they wrote.

“We cannot accept former president 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.”

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Separation of powers

Trump’s stance, the panel ruled, would undermine the separation of powers between the three branches of government – executive, legislative and judicial.

“At bottom, former president Trump’s stance would collapse our system of separated powers by placing the president beyond the reach of all three branches,” the court ruled.

“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 US Supreme Court in Washington. File photo: AP

No double jeopardy

The panel ruled that Trump’s second impeachment by the US House of Representatives doesn’t make him immune from prosecution. His lawyers argued that his Senate trial over January 6 means he’s now subject to “double jeopardy” if he’s tried in criminal court.

But the judges ruled that impeachment isn’t the same as criminal punishment, and the indictment against Trump doesn’t charge the same offence as the House did in impeaching him.

“The weight of historical authority indicates that the Framers intended for public officials to face ordinary criminal prosecution as well as impeachment,” according to the opinion.

Ability to govern

Trump has argued that a ruling against him would chill a president’s ability to govern without fear of criminal charges or retaliatory prosecutions. The panel said it’s more important to have the sort of “fair and accurate judicial proceedings” that criminal trials provide.

Recent history shows that former presidents, including Trump himself, understood they were not “wholly immune from criminal liability for official acts” during their presidency.

For instance, Gerald Ford pardoned Richard Nixon, “which both former presidents evidently believed was necessary to avoid Nixon’s post-resignation indictment”.

Bill Clinton accepted a five-year suspension of his law license and a US$25,000 fine in exchange for Independent Counsel Robert Ray agreeing not to charge him.

And during Trump’s second impeachment, his lawyer said the more appropriate avenue was prosecution, “to which no former officeholder is immune”.

What’s next for Trump?

The appellate panel gave Trump until February 12 to ask the US Supreme Court to hear the case.

If the high court accepts his petition, the nine justices would likely hold new arguments, possibly on an expedited basis, before issuing a decision.

If the Supreme Court declines to take up the case, the appeals court decision will stand and Trump must go to trial.

Trump could also request a rehearing before a full panel of the DC Circuit. Such an “en banc” review is rarely granted, and Tuesday’s decision would take effect while the court decided what to do. That means the case would proceed in the trial court. If the rehearing were granted, it could be put on hold again.

Any of these steps would further delay a trial of Trump, who faces three other criminal cases.