United States of America v. Donald J. Trump

Notable Items:

Issue(s) Before the Court:

Appellant Claim(s):

Appellee Claim(s):

Holding(s) and Disposition:

Material Facts:

• Former President Trump did not concede the 2020 election (4)
• A District of Columbia federal grand jury indicted former President Trump on four criminal counts
• On January 11, 2021, nine days before President-Elect Biden’s inauguration, the House of Representatives adopted an impeachment resolution charging then-President Trump with “Incitement of Insurrection.” H.R. Res. 24, 117th Cong. (2021).
• At the close of the trial, on February 13, 2021, fifty-seven Senators voted to convict him and forty- three voted to acquit him. See 167 CONG. REC. S733 (daily ed. Feb. 13, 2021). Because two-thirds of the Senate did not vote for conviction, he was acquitted on the article of impeachment. See id.; U.S. CONST. art. I, § 3, cl. 6. (7)
• A full recounting of the facts is available below

Procedural History:

• A Washington, D.C., grand jury returned the instant four-count Indictment against former President Trump on August 1, 2023, and on August 28, 2023, the district court set a trial date of March 4, 2024.
• Former President Trump filed four motions to dismiss the Indictment, relying on: (1) presidential immunity; (2) constitutional provisions, including the Impeachment Judgment Clause and principles stemming from the Double Jeopardy Clause; (3) statutory grounds; and (4) allegations of selective and vindictive prosecution. (8)
• On December 1, 2023, the district court issued a written opinion denying the two motions that are based on presidential immunity and the two constitutional provisions.
• In relevant part, the district court rejected Trump’s claim of executive immunity from criminal prosecution, holding that “[f]ormer Presidents enjoy no special conditions on their federal criminal liability.” United States v. Trump, --- F. Supp. 3d ---, 2023 WL 8359833, at *3 (D.D.C. Dec. 1, 2023).
• Former President Trump filed an interlocutory appeal of the district court’s presidential immunity and double-jeopardy holdings.
• On December 13, 2023, we granted the government’s motion to expedite the appeal, and oral argument was held on January 9, 2024.

Rationale

Majority Opinion (xxx)

• The question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression.
• In the civil context, the Supreme Court has explained that a former President is absolutely immune from civil liability for his official acts, defined to include any conduct falling within the “‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U.S. at 756
• When considering the issue of Presidential immunity, the Supreme Court has been careful to note that its holdings on civil liability do not carry over to criminal prosecutions.
• III. A. Separation of Powers Doctrine
• The Indictment charges that former President Trump violated criminal laws of general applicability. (30)
• Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.
• III. B. Functional Policy Considerations
• First, we assess possible intrusions on the authority and functions of the Executive Branch .... We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.
• Second, we examine the ... Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President. We find these interests compel the conclusion that former President Trump is not immune from prosecution under the Indictment.
• III. C. The Impeachment Judgement Clause
• The strongest evidence against former President Trump’s claim of immunity is found in the words of the Constitution. The Impeachment Judgment Clause provides that “[j]udgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7. (41)
• All of this leads us to conclude that, under the best reading of the Impeachment Judgment Clause, a former President may be criminally prosecuted in federal court, without any requirement that he first be impeached and convicted for the same conduct. (50)
• IV. Double Jeopardy Principles
• It [The Double Jeopardy Clause] has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). [unanimous decision written by Rehnquist]
• The consequences imposed by an impeachment conviction — removal from office and disqualification from future service, U.S. CONST. art. I, § 3, cl. 7. — are intended to hold officials politically accountable, while leaving criminal accountability to the Judicial Branch.
• Former President Trump does not dispute this analysis and instead contends that, rather than applying the Blockburger test, a subsequent criminal prosecution cannot be based on “the same or closely related conduct” as an unsuccessful impeachment. (56)
• But that argument is foreclosed by case law: “The ‘same-conduct’ rule ... is wholly inconsistent with ... Supreme Court precedent and with the clear common-law understanding of double jeopardy.” Dixon, 509 U.S. at 704; see also Hudson, 522 U.S. at 107 (Stevens, concurring in the judgment) (“[T]he Double Jeopardy Clause is not implicated simply because a criminal charge involves essentially the same conduct for which a defendant has previously been punished.” (cleaned up)).
• Accordingly, the order of the district court is AFFIRMED.
• A full description of the rationale is available below

Full Recounting of Facts

• Former President Trump did not concede the 2020 election (4)
• ... he and his supporters made numerous attempts to challenge the results. Many of their attempts were allegedly criminal.
• A District of Columbia federal grand jury indicted former President Trump on four criminal counts
  1. conspiracy to defraud the United States by overturning the election results, in violation of 18 U.S.C. § 371;
  2. conspiracy to obstruct an official proceeding — i.e., the Congress’s certification of the electoral vote — in violation of 18 U.S.C. § 1512(k);
  3. obstruction of, and attempt to obstruct, the certification of the electoral vote, in violation of 18 U.S.C. §§ 1512(c)(2), 2; and
  4. conspiracy against the rights of one or more persons to vote and to have their votes counted, in violation of 18 U.S.C. § 241.
• At this stage of the prosecution, we assume that the allegations set forth in the Indictment are true. United States v. Ballestas, 795 F.3d 138, 149 (D.C. Cir. 2015). We emphasize that whether the Indictment’s allegations are supported by evidence sufficient to sustain convictions must be determined at a later stage of the prosecution.
• he and his co-conspirators allegedly advanced their goal through five primary means: (5)
  1. they “used knowingly false claims of election fraud” to attempt to persuade state legislators and election officials to change each state’s electoral votes in former President Trump’s favor.
  2. then-President Trump and his co-conspirators “organized fraudulent slates of electors in seven targeted states . . . attempting to mimic the procedures that the legitimate electors were supposed to follow.”
  3. then-President Trump and his co-conspirators pressed officials at the Department of Justice “to conduct sham election crime investigations and to send a letter to the targeted states that falsely claimed that the Justice Department had identified significant concerns that may have impacted the election outcome.”
  4. then-President Trump and his co-conspirators attempted to convince then-Vice President Mike Pence to “use his ceremonial role at the January 6 certification proceeding to fraudulently alter the election results.” ... Ultimately, on the morning of January 6, 2021, he held a rally in Washington D.C. where he “repeated knowingly false claims of election fraud to gathered supporters” and “directed them to the Capitol to obstruct the certification proceeding and exert pressure on the Vice President to take the fraudulent actions he had previously refused.”
  5. and finally, from the January 6 rally, thousands of his supporters — “including individuals who had traveled to Washington and to the Capitol at [his] direction” — swarmed the United States Capitol, causing “violence and chaos” that required the Congress to temporarily halt the election- certification proceeding. At that point, he and his co-conspirators “exploited the disruption by redoubling efforts to levy false claims of election fraud and convince Members of Congress to further delay the certification.” (6)
• On January 11, 2021, nine days before President-Elect Biden’s inauguration, the House of Representatives adopted an impeachment resolution charging then-President Trump with “Incitement of Insurrection.” H.R. Res. 24, 117th Cong. (2021).
• At the close of the trial, on February 13, 2021, fifty-seven Senators voted to convict him and forty- three voted to acquit him. See 167 CONG. REC. S733 (daily ed. Feb. 13, 2021). Because two-thirds of the Senate did not vote for conviction, he was acquitted on the article of impeachment. See id.; U.S. CONST. art. I, § 3, cl. 6. (7)
• A list of the material facts is available above

Majority Full Argument

• See Material Facts
• See Procedural History
• II. Jurisdiction (9)
• The collateral-order doctrine [See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)], however, treats as final and thus allows us to exercise appellate jurisdiction over “a small class of [interlocutory] decisions that conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and are effectively unreviewable on appeal from a final judgment.” Citizens for Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d 860, 864 (D.C. Cir. 2008) (cleaned up).
• The district court’s denial of former President Trump’s immunity defense unquestionably satisfies the first two requirements and thus we focus our analysis on the third: whether the denial of immunity is effectively unreviewable on appeal from a final judgment.
• District court orders rejecting claims of civil immunity are quintessential examples of collateral orders.
• But in Midland Asphalt Corp. v. United States, the Supreme Court counseled that the collateral-order doctrine is interpreted “with the utmost strictness in criminal cases.” 489 U.S. 794, 799 (1989) (cleaned up). (10)
• ... we can exercise jurisdiction for two reasons.
  1. Midland Asphalt is distinguishable and does not require immunity to derive from an explicit textual source.
  2. the theories of immunity former President Trump asserts are sufficient to satisfy Midland Asphalt under Circuit precedent.
• II. A. Distinguishing Midland Asphalt
• The Supreme Court held that an order is “effectively unreviewable” on appeal “only where the order at issue involves ‘an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.’”
• ...
• Nor was the question presented in Midland Asphalt anything like the one before us. Procedural rules are worlds different from a former President’s asserted immunity from federal criminal liability. (14)
• It would be equally “unseemly” for us to require that former President Trump first be tried in order to secure review of his immunity claim after final judgment.
• Whether explicit or implicit in the Constitution, the right not to stand trial must be “vindicated before trial” or not at all. Midland Asphalt at 799
• II. B. Circuit Precedent
• Our Circuit precedent has taken a broad view of Midland Asphalt, consistently holding that the denial of a right not to stand trial is immediately appealable if the right is similar or analogous to one provided in the Constitution. Both of former President Trump’s asserted sources of immunity — separation of powers and double jeopardy principles — fit within this window of appealability. (15)
• Both of former President Trump’s arguments are at least analogous enough to the Speech or Debate Clause or the Double Jeopardy Clause to fit within our precedent. (18)
• Accordingly, we conclude that we have jurisdiction to reach the merits of former President Trump’s appeal.
• III. Executive Immunity
• Former President Trump claims absolute immunity from criminal prosecution for all “official acts” undertaken as President, a category, he contends, that includes all of the conduct alleged in the Indictment.
• The question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression.
• The Supreme Court has consistently held that even a sitting President is not immune from responding to criminal subpoenas issued by state and federal prosecutors. See Trump v. Vance, 140 S. Ct. 2412, 2431 (2020); United States v. Nixon, 418 U.S. 683; United States v. Burr, 25 F. Cas. 30, 33–34 (C.C. Va. 1807) (Marshall, C.J.). (19)
• In the civil context, the Supreme Court has explained that a former President is absolutely immune from civil liability for his official acts, defined to include any conduct falling within the “‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U.S. at 756
• Both sitting and former Presidents remain civilly liable for private conduct.
• When considering the issue of Presidential immunity, the Supreme Court has been careful to note that its holdings on civil liability do not carry over to criminal prosecutions.
• He advances three grounds for establishing this expansive immunity for former Presidents:
  1. Article III courts lack the power to review the President’s official acts under the separation of powers doctrine;
  2. functional policy considerations rooted in the separation of powers require immunity to avoid intruding on Executive Branch functions; and
  3. the Impeachment Judgment Clause does not permit the criminal prosecution of a former President in the absence of the Congress impeaching and convicting him.
• ... we reject all three potential bases for immunity both as a categorical defense to federal criminal prosecutions of former Presidents and as applied to this case in particular. (20)
• III. A. Separation of Powers Doctrine
• “It is settled law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the President of the United States.” [Nixon v.] Fitzgerald, 457 U.S. at 753–54; see also [United States v.] Nixon, 418 U.S. at 706 (separation of powers doctrine cannot “sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances”).
• Nevertheless, former President Trump argues that the constitutional structure of separated powers means that “neither a federal nor a state prosecutor, nor a state or federal court, may sit in judgment over a President’s official acts, which are vested in the Presidency alone.”
• Properly understood, the separation of powers doctrine may immunize lawful discretionary acts but does not bar the federal criminal prosecution of a former President for every official act. (21)
• Marbury distinguished between two kinds of official acts: discretionary and ministerial.
• When the President or his appointed officers exercise discretionary authority, “[t]he subjects are political” and “the decision of the executive is conclusive.” Id. at 166. Their discretionary acts, therefore, “can never be examinable by the courts.” Id.
• although discretionary acts are “only politically examinable,” the judiciary has the power to hear cases “where a specific duty is assigned by law.” Id. at 166. Marbury thus makes clear that Article III courts may review certain kinds of official acts — including those that are legal in nature. (22)
• Although certain discretionary actions may be insulated from judicial review, the structure of the Constitution mandates that the President is “amenable to the laws for his conduct” and “cannot at his discretion” violate them. Marbury, 5 U.S. (1 Cranch) at 166. (25)
• [review of criminal liability of legislators and judges for ministerial official acts. In particular, civil immunity for “an official judicial act within his statutory jurisdiction, broadly construed.” Dennis v. Sparks 449 U.S, which may be expose the judge to criminal liability.]
• The Indictment charges that former President Trump violated criminal laws of general applicability. (30)
• Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.
• III. B. Functional Policy Considerations
• ... we “necessarily” must “weigh[] concerns of public policy, especially as illuminated by our history and the structure of our government,” including our “constitutional heritage and structure.” Fitzgerald, 457 U.S. at 747–48 (30)
• We note at the outset that our analysis is specific to the case before us, in which a former President has been indicted on federal criminal charges arising from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential term. (31)
• We consider the policy concerns at issue in this case in two respects.
• First, we assess possible intrusions on the authority and functions of the Executive Branch .... We conclude that the interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action and permitting vexatious litigation.
• Second, we examine the ... Executive Branch’s interest in upholding Presidential elections and vesting power in a new President under the Constitution and the voters’ interest in democratically selecting their President. We find these interests compel the conclusion that former President Trump is not immune from prosecution under the Indictment.
• III. B. 1. Catagorical Immunity Defense
• We cannot presume that a President will be unduly cowed by the prospect of post-Presidency criminal liability any more than a juror would be influenced by the prospect of post- deliberation criminal liability, or an executive aide would be quieted by the prospect of the disclosure of communications in a criminal prosecution. (32)
• Instead of inhibiting the President’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behavior. (34)
• Additionally, former President Trump’s “predictive judgment” of a torrent of politically motivated prosecutions “finds little support in either history or the relatively narrow compass of the issues raised in this particular case,” ... as former President Trump acknowledges that this is the first time since the Founding that a former President has been federally indicted. (35)
• As the Nixon Court explained, wholly immunizing the President from the criminal justice process would disturb “the primary constitutional duty of the Judicial Branch to do justice in criminal prosecutions” to such an extent that it would undermine the separation of powers by “plainly conflict[ing] with the function of the courts under Art. III.” Nixon, 418 U.S. at 707. (36)
• The federal prosecution of a former President fits the case “[w]hen judicial action is needed to serve broad public interests” in order to “vindicate the public interest in an ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754. (37)
• We therefore conclude that functional policy considerations rooted in the structure of our government do not immunize former Presidents from federal criminal prosecution.
• III. B. 2. Immunity from the Indictment’s Charges
• The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. (38)
• This duty encompasses following the legal procedures for determining election results and ensuring that executive power vests in the new President at the constitutionally appointed time.
• Former President Trump’s alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government. (39)
• 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.
• 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. (40)
• 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.
• 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.
• III. C. The Impeachment Judgement Clause
• The strongest evidence against former President Trump’s claim of immunity is found in the words of the Constitution. The Impeachment Judgment Clause provides that “[j]udgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7. (41)
• ... he asserts that, under the Clause, a former President enjoys immunity for any criminal acts committed while in office unless he is first impeached and convicted by the Congress.
• The Impeachment Judgment Clause is focused solely on those who are convicted by the Senate following impeachment by the House. The first part of the Clause limits the penalties that can be imposed based on an impeachment conviction: .... The second part makes clear that the limited consequences of impeachment do not immunize convicted officers from criminal prosecution: .... (42)
• He asserts that the Impeachment Judgment Clause “presupposes” that a President is not criminally liable absent a conviction in the Senate. (43)
• Other courts have rejected this “tortured” interpretation of the Impeachment Judgment Clause, which previously has been advanced to support claims of judicial immunity. See Claiborne, 727 F.2d at 846
• Moreover, former President Trump’s interpretation runs counter to the text, structure and purpose of the Impeachment Judgment Clause. See N.L.R.B. v. SW Gen., Inc., 580 U.S. 288, 302 (2017)
• Former President Trump’s reading rests on a logical fallacy: Stating that “if the President is convicted, he can be prosecuted,” does not necessarily mean that “if the President is not convicted, he cannot be prosecuted.” See, e.g., N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, concurring) (explaining “the fallacy of the inverse (otherwise known as denying the antecedent): the incorrect assumption that if P implies Q, then not-P implies not-Q”). (44)
• The Impeachment Judgment Clause contains no words that limit criminal liability — and, to the contrary, it uses “nevertheless” to ensure that liability will not be limited (i.e., “hindered or obstructed”), even after an official is impeached, convicted and removed from office.
• [several examples from Founding Era docuements that "an impeached-and-acquitted official may face criminal indictment". ]
• [Joseph] Story explained that without a criminal trial “the grossest official offenders might escape without any substantial punishment, even for crimes, which would subject their fellow citizens to capital punishment.” 2 Story, Commentaries § 780 (48)
• All of this leads us to conclude that, under the best reading of the Impeachment Judgment Clause, a former President may be criminally prosecuted in federal court, without any requirement that he first be impeached and convicted for the same conduct. (50)
• IV. Double Jeopardy Principles
• ... the weight of historical authority indicates that the Framers intended for public officials to face ordinary criminal prosecution as well as impeachment. Supra Part III.C. (51)
• It [The Double Jeopardy Clause] has been interpreted to prohibit “imposition of multiple criminal punishments for the same offense.” Hudson v. United States, 522 U.S. 93, 99 (1997) (citation omitted). [unanimous decision written by Rehnquist]
• Under precedent interpreting the Double Jeopardy Clause, former President Trump’s impeachment acquittal does not bar his subsequent criminal prosecution for two reasons:
  1. An impeachment does not result in criminal punishments; and
  2. the Indictment does not charge the same offense as the single count in the Impeachment Resolution.
• IV. A. Impeachment is not "Criminal"
• ... double jeopardy guards only against “imposition of multiple criminal punishments for the same offense.” Hudson, 522 U.S. at 99 (cleaned up). (52)
• Although double jeopardy applies only to criminal punishments, impeachment imposes political punishments.
• The consequences imposed by an impeachment conviction — removal from office and disqualification from future service, U.S. CONST. art. I, § 3, cl. 7. — are intended to hold officials politically accountable, while leaving criminal accountability to the Judicial Branch.
• Impeachment is not a criminal process and cannot result in criminal punishment. (54)
• [Footnote 15] When determining whether a punishment labeled “civil” by the Congress is criminal for double-jeopardy purposes, courts apply a multi-factored test. See Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168–69 (1963).
• IV. B. Blockburger Test
• Even if we assume that an impeachment trial is criminal under the Double Jeopardy Clause, the crimes alleged in the Indictment differ from the offense for which President Trump was impeached. (55)
• In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the same-elements test” (also known as the “Blockburger test”) United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up).
• Under the Blockburger test, none of the four offenses alleged in the Indictment is the same as the sole offense charged in the article of impeachment.
• Former President Trump does not dispute this analysis and instead contends that, rather than applying the Blockburger test, a subsequent criminal prosecution cannot be based on “the same or closely related conduct” as an unsuccessful impeachment. (56)
• But that argument is foreclosed by case law: “The ‘same-conduct’ rule ... is wholly inconsistent with ... Supreme Court precedent and with the clear common-law understanding of double jeopardy.” Dixon, 509 U.S. at 704; see also Hudson, 522 U.S. at 107 (Stevens, concurring in the judgment) (“[T]he Double Jeopardy Clause is not implicated simply because a criminal charge involves essentially the same conduct for which a defendant has previously been punished.” (cleaned up)).
• * * *
• We have balanced former President Trump’s asserted interests in executive immunity against the vital public interests that favor allowing this prosecution to proceed. (57)
• We also have considered his contention that he is entitled to categorical immunity from criminal liability for any assertedly “official” action that he took as President — a contention that is unsupported by precedent, history or the text and structure of the Constitution.
• Finally, we are unpersuaded by his argument that this prosecution is barred by “double jeopardy principles.”
• Accordingly, the order of the district court is AFFIRMED.
• The core of the rationale is available above