On Tuesday, the D.C. Circuit decisively rejected former President Donald Trump’s absolute presidential immunity claim. The ruling deals a likely fatal blow to his best defense to the federal (and state) prosecutions of his alleged election interference. It affirms a core principle of American constitutionalism: no one is above the law. And when Trump inevitably petitions the Supreme Court for review, it should simply reject any reconsideration.
This issue first arose when Trump asked D.C. District Court Judge Tanya Chutkan to dismiss the prosecution and grant him absolute criminal immunity for official presidential acts. He primarily staked his request on two shoddy constitutional grounds: The first is that criminal prosecution, even after a president has left office, would impermissibly interfere with the president’s ability to execute his or her constitutionally mandated duties. The second is that the impeachment judgment clause prohibits a president’s prosecution unless the person has first been impeached and convicted for that conduct.
“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.”
After Chutkan knocked down both arguments in her ruling rejecting Trump’s monarchical claim, the former president went to the D.C. Circuit to reverse her on appeal. A three-judge panel heard oral argument in that appeal Jan. 9 — and it did not go well for the former president.
The pivotal moment came not long after the hearing began when Judge Florence Pan took Trump’s counsel John Sauer to task over the bizarre consequences of Trump’s position. She asked whether, if the court were to recognize Trump’s legal reasoning, it would necessarily prohibit the prosecution of a president who ordered SEAL Team Six to assassinate a political opponent. That, of course, cannot be right. And though he tried to get around it, even Sauer was ultimately forced to acknowledge this hole in his client’s absolute immunity claim: a president could not be criminally prosecuted for such an assassination.
If there was any doubt about the audacity of Trump’s position following oral argument, he clarified it in the days that followed. First, the former president wrote on Truth Social that “even events that ‘cross the line’ must fall under total immunity.” In other words, in Trump’s view, a president who ordered the murder of a rival would be immunized from criminal accountability. Then, at a campaign rally, he likened a president who does things that “cross the line” to a “rogue cop” — seemingly implying that both should be excused from any criminal accountability. Those are ludicrous views— for one thing, police do not enjoy absolute criminal immunity — which even his lawyer refused to espouse.
Now, the D.C. Circuit has responded with the derision all of this deserves. The opinion was issued “per curiam” — meaning the court spoke with one unanimous voice — instead of from one particular judge. That decision reflects the historic nature of the ruling — and adds to its devastating and conclusive power.
The opinion cataloged the dangerous consequences of granting such sweeping impunity to the most powerful official in the country. “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 wrote. “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.”
And the opinion rejected Trump‘s absurd impeachment conviction precondition out of hand — holding, as we have explained before, that the “interpretation runs counter to the text, structure and purpose of the Impeachment Judgment Clause.”
What’s next? The D.C. Circuit ruled, in effect, that the stay of lower court proceedings will be lifted in six days. Trump may ask the full circuit to overturn the panel’s ruling, known as en banc review. But the ruling is sound, the vast majority of judges on the full circuit are unsympathetic to Trump, and we expect they will turn him aside in a matter of weeks. Indeed, that judges nominated by presidents of both parties united to issue a unanimous opinion indicates how the full D.C. Circuit will likely view Trump’s request.
Beyond the lack of legal justification for granting review, denying review would be strategically wise: it would allow the justices to dodge another political landmine.
At that point, he will turn to the Supreme Court. We think it should and may well refuse to consider his appeal. Some may assume the high court will necessarily take up Trump’s appeal, given the magnitude of the legal issue involved. If there were any serious arguments in favor of granting the sweeping immunity Trump seeks, that would be a fair assumption. Where there is a genuine controversy — especially on a question as consequential as this one — the court has a duty to set the law.
But that is not the case here. The answer to whether absolute immunity exists for presidents or, as Trump put it, whether a president is entitled to “cross the line” is clear.
The D.C. Circuit opinion hammered home this point, explaining how Trump’s impeachment argument defeats his absolute immunity claim. The court noted, “Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly ‘official’ actions” — and went on to decisively rule that the civil absolute immunity standard does not apply to former presidents in the criminal context. The ruling thus leaves no controversy for the Supreme Court to resolve. For that reason alone, it should rebuff the case. Moreover, the D.C. Circuit’s opinion even addressed the potentially thorny question of appellate jurisdiction. The court clarified the arguably murky state of the law in this area. This was a wise choice, and will present the Supreme Court with a straightforward legal issue to analyze. The Supreme Court has repeatedly declined to hear Trump and his allies’ assaults on democracy and the rule of law. The justices spurned the legal challenges trying to overturn the 2020 election results, including Texas’ lawsuit challenging the Pennsylvania vote, among others. The court chose not to review the D.C. Circuit’s decision in Trump v. Thompson, which denied Trump’s attempt to prevent the Jan. 6 committee from accessing his documents. And most recently, the justices refused to review the 11th Circuit’s ruling overturning the district court’s baseless special master order in the Justice Department’s classified documents prosecution. In each of these cases, the court found that the answer to the legal challenge Trump presented was so obvious, it did not need to intervene. The same is true in this case. Beyond the lack of legal justification for granting review, denying review would be strategically wise: it would allow the justices to dodge another political landmine. The court, battered by controversial decisions and ethics scandals, is already in the middle of a politically explosive term, facing issues ranging from Trump’s eligibility under the 14th Amendment to the scope of the administrative state. Regardless of how the court comes down in those cases, blowback is almost inevitable.. There is no reason for the court to further risk its precarious standing in the eyes of the public. Even if the court agrees to hear Trump’s appeal, it should do so on an expedited basis — and only to reject Trump’s immunity claim once and for all. The court has already granted a quick pace in the Colorado 14th Amendment case; and perhaps the most similar case to this one, U.S. v. Nixon, took two months to resolve (from when the court granted review to when it released its decision). As we have written before, even if the Supreme Court decides to hear the appeal on an expedited basis, the trial can begin at some point over the summer (assuming the court rejects immunity). And if the Supreme Court rejects the appeal altogether, that could come as early as June. At its core, the presidential immunity Trump seeks would endow the president with autocratic powers inimical to the Constitution and this country’s founding principles. The D.C. Circuit correctly upheld Chutkan’s ruling. Now, the Supreme Court should reply to Trump’s audaciously unconstitutional theory with two words: cert denied.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action.
Samara Angel
Samara Angel is a researcher and analyst. 
