Impressions From The D.C. Appeals Court Decision on Immunity and Where It Goes From Here

Claims this Opinion Is A Brilliant Piece of Legal Scholarship are Just Foundational Gaslighting to Criticize SCOTUS Should It Decide To Take the Matter for Review.

Note: This article was begun shortly after the Circuit Court of Appeals for the District of Columbia issued its opinion in the Trump immunity matter. The press of other work and travel interrupted my writing and prevented me from completing it.

Later today the Trump defense team will likely be filing a motion for a “stay” with the Supreme Court to prevent the “Mandate” from issuing by the Appeals Court back to the District Court. The issuance of the Mandate is what returns jurisdiction over the case back to the district court judge, and would allow the DC trial to be rescheduled and pretrial proceedings to resume. The Appeals Court ordered that if the Trump defense sought a stay from the Supreme Court, the issuance of the Mandate back to the trial court would be held in abeyance pending the Supreme Court acting on the request.

What follows were my initial impressions with regard to the Appeals Court’s decision, without a huge amount of time spent researching various individual aspects. As noted, I didn’t spend any time looking at the portion of the opinion dealing with jurisdiction to hear an appeal on the immunity question at this stage, nor did I spend much time going back through the “Separation of Powers” issues evolving from Marbury v. Madison.

Finally — for purposes of this prelude — I note that the press coverage of the claims that the opinion is a “bullet proof” and “brilliant” work of legal analysis is for one purpose, and one purpose alone — to establish a foundation from which the press and the lefty legal beagles will attack the Supreme Court if it decides to take up the case. The argument will be that doing so is unnecessary — and therefore partisan — because the Appeals Court opinion is so super-terrific.

But it is not. I received some static on social media for making the following observation — the Opinion is the work of three appeals court judges. Two have about 20 months on the appeals court. The third is older than any current Justice on the Supreme Court.

As noted below, their treatment of what I think is the most consequential issue raised on the issue is the basis upon which I think four Justices will want their views to be known either via an Opinion of the Court, or a in a dissenting opinion.

The oral argument in the Colorado case involving Sec. 3 of the 14th Amendment only reinforced this view. But that’s another article.

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Two observations at the top before I get to an analysis of the contents of the opinion.

In Nixon v. Fitzgerald, the Supreme Court made a significant point that the President — in office or out — is not the same as any other citizen.

[A] President must concern himself with matters likely to "arouse the most intense feelings." … Yet, as our decisions have recognized, it is in precisely such cases that there exists the greatest public interest in providing an official "the maximum ability to deal fearlessly and impartially with" the duties of his office... This concern is compelling where the officeholder must make the most sensitive and far-reaching decisions entrusted to any official under our constitutional system. Nor can the sheer prominence of the President's office be ignored. In view of the visibility of his office and the effect of his actions on countless people, the President would be an easily identifiable target for suits for civil damages. Cognizance of this personal vulnerability frequently could distract a President from his public duties, to the detriment of not only the President and his office but also the Nation that the Presidency was designed to serve.

The Executive Branch — one-third of the federal government — is invested in the person of a single individual. This is unlike the Legislative Branch composed now of 535 elected representatives in state-wide and local elections. It is also unlike the Judicial Branch which is made up of 890 Article III judges in various courts across the country.

The Executive Branch is embodied in a single individual imbued with all the authority of the federal government as conferred by the Constitution, statutory, and common law. That one individual is elected by the country as a whole to make the most important and consequential decisions on behalf of everyone from January 20 to January 20 of a fixed four-year term — 24 hours a day, 365 days a year.

In yesterday’s Appeals Court decision, the three judge panel dismissively waved all of that away when it wrote:

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.

That is exactly contrary to the outcome of Nixon where the Court said that whether the individual was in office or out-of-office, the protections necessary to afford that individual were the same — for the purpose of protecting the OFFICE.

Turning to the Opinion, it has two primary parts.