Upholding the rule of law

The ruling of the United States Court of Appeals for the District of Columbia Circuit in United States v. Trump, on Feb. 6, was a stunning affirmation of the rule of law. The significance of this historic decision should not get lost amidst the attention paid to the Supreme Court hearing oral arguments two days later in Trump v. Anderson. The D.C. Circuit’s ruling is the first time that a federal court of appeals has expressly held that a former president may be prosecuted for crimes committed in office. This is crucial in upholding the most basic aspect of the rule of law: no one, not even the President of the United States, is above the law.

The Supreme Court never has addressed whether a sitting president or a former president can be prosecuted for crimes committed while in office. There is a 1973 Justice Department memorandum that concluded that a sitting president could not be criminally prosecuted. But this was written by the Nixon Justice Department at a time when it was beginning to appear that Richard Nixon had committed crimes in office. In March 1974, a Watergate grand jury named Nixon an unindicted co-conspirator because it said that it did not know whether a sitting president could be indicted.

During the Trump presidency, Special Counsel Robert Mueller, in his investigation of Russian interference in the 2016 election, said that he would not opine as to whether Trump engaged in obstruction of justice because Justice Department rules prevented a sitting president from being indicted.

However, in Trump v. Vance, in 2020, the Supreme Court said that it was constitutional for a grand jury in a state court to subpoena a sitting president’s financial records. The Court, in an opinion by Chief Justice John Roberts, rejected the argument that the Constitution provides a sitting president with total immunity from criminal investigations. But the Court did not go further than holding that a sitting president could be compelled to comply with a subpoena; it did not address the question of whether a president could be indicted while in office.

The Supreme Court, in Nixon v. Fitzgerald in 1982, held that a president has absolute immunity to civil suits for money damages for anything done in carrying out the presidency. The case involved a lawsuit by a Defense Department whistleblower, Ernie Fitzgerald, who drew the ire of Nixon and was fired after exposing wasteful spending in testimony before Congress. Although Nixon’s presidency had ended eight years earlier, the Court found that he had absolute immunity for these acts taken while in office.

Fifteen years later, in Clinton v. Jones, the Supreme Court unanimously held that a president does not have immunity for acts taken prior to assuming office. This was a suit by Paula Jones against Bill Clinton for sexual harassment that allegedly occurred when he was governor of Arkansas. The Court said that absolute immunity exists to protect the exercise of discretion while in office and does not include acts taken before becoming president.

But that is the extent of Supreme Court precedents addressing potential presidential immunity. A grand jury in Washington, D.C. has indicted Trump on four counts related to his efforts to undermine the outcome of the 2020 presidential election. Trump claimed absolute immunity from criminal prosecution because he was president at the time the alleged acts occurred.

The United States District Court for the District of Columbia rejected the immunity claim and Trump then brought an interlocutory appeal. Special counsel Smith asked the Supreme Court to grant review before the Court of Appeals could hear the matter, but the high court refused. The D.C. Circuit then heard the case. At the outset of the arguments, Trump’s lawyer was asked if a president would have absolute immunity if he ordered Navy Seals to kill a political rival. Trump’s lawyer said that absolute immunity would protect the president even then. It was clear that the judges rightly were not buying that unlimited conception of presidential immunity.

Indeed, the D.C. Circuit in its unanimous decision emphatically ruled against Trump. The Court declared: “We cannot accept that the office of the presidency places its former occupants above the law for all time thereafter.” This has to be right: no one, including a former president, should be above the law.

The D.C. Circuit decision was only about whether a former president could be prosecuted for acts taken while in office. The court explained: “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses 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.”

The court’s reasoning, though, should mean that even a sitting president can be indicted and prosecuted. Otherwise, a president is placed above the law. Nothing in the Constitution makes impeachment and removal the sole way to hold a president accountable. In fact, the political realities make it highly unlikely there ever will be two-thirds of the Senate to remove a president from office. As we saw with the two Trump impeachments, Senators from the president’s party rarely will vote for removal.

The question is what happens next in United States v. Trump. Federal district court judge Tanya Chutkan already has said that the trial will not start in March as scheduled. The D.C. Circuit took the unusual step of giving Trump only until Monday, Feb. 12, to receive a stay of the criminal proceedings either from the entire D.C. Circuit or the Supreme Court. Otherwise, it seems the district court could move forward with scheduling a trial.

Trump undoubtedly will seek Supreme Court review. The Court has many options. It could deny review and allow the trial to proceed. It well may decide to do that because the D.C. Circuit ruling seems so clearly correct and there is no split among the lower courts. Or the Supreme Court could grant certiorari but have expedited briefing and arguments. Even then, it is hard to imagine a trial this spring. Or the Court could grant review, but schedule oral arguments for next Fall. In that case, there is no chance of a trial in federal court in D.C. before the November 2022 election.

My hope is that the Supreme Court will deny review and allow the proceedings against Trump to proceed. There is no clearer way to uphold the rule of law and emphatically show that no one is above the law.