DC Circuit Upholds Judge Chutkan’s Immunity Decision

The opinion is here. They’ve also issued the mandate on a tight clock.

Today, we affirm the denial. 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.

They did use collateral order doctrine to establish jurisdiction.

Although both parties agree that the Court has jurisdiction over former President Trump’s appeal, amicus curiae American Oversight raises a threshold question about our collateral-order jurisdiction. In every case, “we must assure ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868 (D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us jurisdiction over “final decisions of the district courts,” id., “we ordinarily do not have jurisdiction to hear a defendant’s appeal in a criminal case prior to conviction and sentencing,” United States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The collateral-order doctrine, 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.

Here’s how the opinion dealt with Trump’s Marbury argument. This language would have come from Judge Henderson (the opinion clearly has a lot of input from all three).

We therefore conclude that Article III courts may hear the charges alleged in the Indictment under the separation of powers doctrine, as explained in Marbury and its progeny and applied in the analogous contexts of legislative and judicial immunity. The Indictment charges that former President Trump violated criminal laws of general applicability. Acting against laws enacted by the Congress, he exercised power that was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring). Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.

This part of the ruling could be seen as limiting it to Blassingame.

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.8

8 We do not address policy considerations implicated in the prosecution of a sitting President or in a state prosecution of a President, sitting or former.

The opinion straight up says Trump’s Take Care Clause argument is bunk.

The President, of course, also has a duty under the Take Care Clause to faithfully enforce the laws. 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. To the extent former President Trump maintains that the post-2020 election litigation that his campaign and supporters unsuccessfully pursued implemented his Take Care duty, he is in error. See infra n.14. Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.

This is an argument that I thought Jack Smith didn’t push enough.

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. 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 immunize former President Trump’s actions would “further . . . aggrandize the presidential office, already so potent and so relatively immune from judicial review, at the expense of Congress.” Youngstown, 343 U.S. at 654 (Jackson, J., concurring) (footnote omitted). As Justice Jackson warned:

Executive power has the advantage of concentration in a single head in whose choice the whole Nation has a part, making him the focus of public hopes and expectations. In drama, magnitude and finality his decisions so far overshadow any others that almost alone he fills the public eye and ear. No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications. By his prestige as head of state and his influence upon public opinion he exerts a leverage upon those who are supposed to check and balance his power which often cancels their effectiveness.

Id. at 653–54 (Jackson, J., concurring).

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. Nor can we sanction his apparent contention that the Executive has carte blan che to violate the rights of individual citizens to vote and to have their votes count.

* * *

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. 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. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment. In so holding, we act, “not in derogation of the separation of powers, but to maintain their proper balance.” See Fitzgerald, 457 U.S. at 754.

This section, turning Trump’s impeachment argument on its head, is the fruit of Florence Pan’s work in the hearing, surgically narrowing and then narrowing still further the issues.

Former President Trump agrees that the Impeachment Judgment Clause contemplates and permits the prosecution of a former President on criminal charges — he argues only that such a former President first must be impeached by the House and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In other words, 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. Under that theory, he claims that he is immune from prosecution because he was impeached and acquitted. By taking that position, former President Trump potentially narrows the parties’ dispute to whether he may face criminal charges in this case consistent with the Impeachment Judgment Clause: If the Clause requires an impeachment conviction first, he may not be prosecuted; but if it contains no such requirement, the Clause presents no impediment to his prosecution.

Former President Trump also implicitly concedes that there is no absolute bar to prosecuting assertedly “official” actions. He argues elsewhere in his brief that his impeachment on the charge of inciting insurrection was based on conduct that was the “same and closely related” to the “official acts” charged in the Indictment. Appellant’s Br. 46 (“President Trump was impeached and acquitted by the Senate for the same and closely related conduct to that alleged in the indictment.” (emphasis omitted)); id. at 42 (“[A]ll five types of conduct alleged in the indictment constitute official acts.”). And he agrees that if he had been convicted by the Senate in that impeachment trial, he would not be immune from prosecution for the “official acts” at issue here. See id. at 31. Thus, he concedes that a President can be prosecuted for broadly defined “official acts,” such as the ones alleged in the Indictment, under some circumstances, i.e., following an impeachment conviction. [my emphasis]

They note that Trump’s argument about Alexander Hamilton is followed immediately by Hamilton saying that Presidents must be unlike Kings.

To counter the historical evidence that explains the purpose of the Impeachment Judgment Clause, former President Trump turns to one sentence written by Alexander Hamilton in the Federalist 69: “The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 69, at 337 (Alexander Hamilton) (Coventry House Publishing, 2015). He focuses on the word “afterwards” and suggests that a President is not “liable to prosecution and punishment” until “after[]” he has been impeached and convicted by the Senate. See Appellant’s Br. 14–15. But we think the more significant word in Hamilton’s statement is “liable,” which means “subject to.” Liable, 1 John Ash, New and Complete Dictionary of the English Language (1795). Hamilton specifies that a President would be subject to impeachment, trial, conviction and removal from office; and “afterwards” would be subject to prosecution and punishment, without regard to the verdict in the impeachment proceeding. 10 Moreover, in the very next sentence of the same essay, Hamilton stresses that the President must be unlike the “king of Great Britain,” who was “sacred and inviolable.” The Federalist No. 69, at 337–38. It strains credulity that Hamilton would have endorsed a reading of the Impeachment Judgment Clause that shields Presidents from all criminal accountability unless they are first impeached and convicted by the Congress.

The opinion names all the Senators who said they voted against impeachment because Trump was out of office.

Former President Trump’s interpretation also would permit the commission of crimes not readily categorized as impeachable (i.e., as “Treason, Bribery, or other high Crimes and Misdemeanors”) and, if thirty Senators are correct, crimes not discovered until after a President leaves office. See U.S. CONST. art. II, § 4; see also, e.g., 167 CONG. REC. S736 (daily ed. Feb. 13, 2021) (statement of Senate Minority Leader McConnell) (“We have no power to convict and disqualify a former office holder who is now a private citizen.”). 13

13 See also statements of Senators Barrasso, Blunt, Braun, Capito, Cornyn, Cramer, Crapo, Daines, Ernst, Fischer, Grassley, Hoeven, Hyde-Smith, Inhofe, Kennedy, Lankford, Lee, Lummis, Moran, Portman, Risch, Rounds, Rubio, Shelby, Sullivan, Thune, Tillis, Tuberville and Wicker.

Here’s another section on the import of Blassingame. They’re saying this decision is categorical — that is, there’s no need for analysis of whether these were official acts or not. But because Blassingame already ruled they were not, there’s no need to here.

14 Because we conclude that former President Trump is not entitled to categorical immunity from criminal liability for assertedly “official” acts, it is unnecessary to explore whether executive immunity, if it applied here, would encompass his expansive definition of “official acts.” Nevertheless, we observe that his position appears to conflict with our recent decision in Blassingame, 87 F.4th at 1. According to the former President, any actions he took in his role as President should be considered “official,” including all the conduct alleged in the Indictment. Appellant’s Br. 41–42. But in Blassingame, taking the plaintiff’s allegations as true, we held that a President’s “actions constituting re-election campaign activity” are not “official” and can form the basis for civil liability. 87 F.4th at 17. In other words, if a President who is running for re-election acts “as office-seeker, not office-holder,” he is not immune even from civil suits. Id. at 4 (emphasis in original). Because the President has no official role in the certification of the Electoral College vote, much of the misconduct alleged in the Indictment reasonably can be viewed as that of an office-seeker — including allegedly organizing alternative slates of electors and attempting to pressure the Vice President and Members of the Congress to accept those electors in the certification proceeding. It is thus doubtful that “all five types of conduct alleged in the indictment constitute official acts.” Appellant’s Br. 42.

The opinion does rely, in part, on the fact that Jack Smith didn’t charge incitement to insurrection to dismiss Trump’s double jeopardy claim (I had wondered if Smith would add that charge based on the outcome here).

To the extent former President Trump relies on “double jeopardy principles” beyond the text of the Impeachment Judgment Clause, those principles cut against him. The Double Jeopardy Clause provides: “No person shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. CONST. amend. V. It 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). 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.


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. In determining whether two charges are the “same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each offense contains an element not contained in the other,” the offenses are different. United States v. Dixon, 509 U.S. 688, 696 (1993) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)) (cleaned up). If the charges at issue are not the “same offense” under that test, double jeopardy does not bar prosecution. Id. at 696–97.

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. The indicted criminal counts include conspiracy to defraud the United States under 18 U.S.C. § 371; conspiracy to obstruct and obstructing an official proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy to deprive one or more individuals of the right to vote under 18 U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast, the article of impeachment charged former President Trump with incitement of insurrection. See H.R. Res. 24, 117th Cong. (2021). Each of the indicted charges requires proof of an element other than those required for incitement. And the offense of incitement of insurrection requires proof of incitement — an element that is distinct from those associated with each of the crimes of indictment. In other words, the charges are not the same under a straightforward application of the Blockburger test.

[my emphasis]

215 replies
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  2. Fiendish Thingy says:

    So, a unanimous ruling, without dissent, all judges agreeing on jurisdiction?

    Not being a lawyer, and not having read the entire decision, am I correct in assuming this is the best possible outcome from this court?

    • boloboffin says:

      Yes, from emptywheel’s chart in the last post, I believe they went Yes, Big, and ultimately Quick. Now for Trump to appeal it to en banc, then SCOTUS. Then Chutkan can start the clock again.

      • Fiendish Thingy says:

        And to my eyes anyway, the opinion seems to be written in a manner to facilitate the denial of cert by the en banc court and SCOTUS…?

        • grizebard says:

          The case is solidly argued, and unanimous, so I can’t see why the DC District Court would feel any need to stick their oar in.

          As for the Supremes, there is evidently a whole lot of distrust around about some of its current members (not without reason), but it might be far easier for them also to bunt. Who wants to have to argue for any kingship loophole? (Not least after Trump was quoted the other day as being perfectly willing as future pres to ignore SC judgements…)

      • Rwood0808 says:

        After a scan, and reading our host’s highlights, it looks as if they made efforts to make this an easy one to punt by the superior courts.

        What do our lawyers here feel are the chances they take it up?

        Will this lead to more delays or less?

        • PJB2point0 says:


          I understand the mandate will issue on an expedited basis. Once the District Court receives it, must Judge Chutkin wait for Trump’s likely appeal for Circuit Court En Banc consideration or for cert request to SCOTUS before re-calendaring the trial? Is the real political issue now whether anyone will issue a stay?

          • Kope a Pia says:

            The appeals court instructed their clerk to hold the decision before sending it back for Judge Chutkin to restart the case until Monday Feb. 12. That gives Trump less than a week to ask for Supreme Court review and a further stay. In the decision they also stated that if Trump asked for the En Banc to take the appeal or for reconsideration by the the 3 judge panel the stay will end and the case will resume, so no delay. It is understandable that it took a month to word their decision and the appeals court showed they were not slow walking the decision, and want the case to resume as soon as possible. The big question now is does SCOTUS even take the appeal, a more traditional SC would not but who knows about our current SC.

        • Adam Treat says:

          I’ll go on record as saying that neither the en banc court will take it up nor the Supreme. I’ve read the ruling and I can’t see any chance that any other judge wants to step in here except maybe a **minority** of Trump sycophants on the Supreme.

          Let’s see if my prediction is correct. I don’t necessarily have a great track record…

          • P’villain says:

            The panel took care to quote both Justice Kavanaugh (Trump v Vance concurrence) and Justice Thomas to bolster their analysis. Plus Scalia on the BS logic of the Impeachment Clause argument. Any SCOTUS conservatives who might want to overturn this ruling would have some ‘splainin’ to do.

            • Adam Treat says:

              It didn’t escape me that they so quoted, but I have such a dim view of Thomas that I have no doubt he would be utterly unpersuaded or the least bit shameful. Kavanaugh has a little more, but it is 50/50 if he’ll carry the water. Depends upon the tea leafs.

  3. Mister_Sterling says:

    Admiral Ackbar voice: The shield is down!

    This took too long. But now we’re back on track for a verdict before November. This is crucial. This is the ballgame. Trump might still win the EC, but there will have been a verdict.

    • wetzel-rhymes-with says:

      Trump is not going to win the EC. However much the worst gets amplified and reflected back to us over the next nine months, this country is not its social media. However, if Trump does win the EC, I guess we will see if the Supreme Court lets Trump pardon himself.

      Maybe, though, that won’t matter so much, because after such an election, I think disappointment will be much greater than 2004 or 2016, and could become existential for the Democratic Party, more than the fear, because the party won’t see how the wind of American history behind it anymore. That has always depended on a kind of faith, but if Trump wins the election whatever happens next the American people will seem to have become everything that has gotten lost.

        • wetzel-rhymes-with says:

          I think many Democrats have a providential ethos, not an existential idea of progressive politics. An existential idea would be more healthy. The progressive spirit has American history reforming and overcoming We are finding the Soul of America, Clinton to Obama, look at America! We are leading the way to justice and enlightenment. Every generation will be less racist than the next.

          I think a big factor allowing Trump’s rise is that he gives people freedom from having to publicly conform with this idea. He unburdens them of their hypocrisy. Core Democratic ideas have been the public religion for so long we don’t even realize they are gone. This is being replaced with a fascist idea of history on the right, and without the “heartland”, resignation and disappointment on the left. That’s all I’m saying. I think this spirit is very strong now, but it will be the social reality if Trump wins.

      • grizebard says:

        Even if Trump were to prevail through all upcoming legal challenges then squeak a win in November, it will certainly not be with a majority of votes cast. So the main reputational casualty in that situation would arguably not be the Democrat Party, it would be the antiquated Electoral College election system, which absurdly would (as before) have allowed a loser to win.

  4. dogshelpgod says:

    Kudos, Marcy!
    I rely on this site for trenchant analysis, not for “breaking news.” But this time you even beat the major outlets.
    A nice pairing with yesterday’s post on “patience.” (“They also serve who only stand and wait.”
    You do sparkle!

      • Ravenous hoarde says:

        And with well placed vitriol against various “sniffers” when deserved and clear eyed honesty when appropriate. In this case, with Judge Henderson.

        The term “tv lawyers” helped me understand a lot about why the “news” sometimed seemed so unreasonable and hyperbolic about the wrong things.

        • earlofhuntingdon says:

          Frequent network commentators, including tv lawyers, can easily rake in another $500,000 or more in compensation. They’re not all bad, but you can see the incentive to deliver what the producers want to hear, in the way they want to hear it.

  5. Fran of the North says:

    While it shouldn’t be surprising that the Circuit decided this way, to some extent it is just because the deference to a former POTUS is so ingrained. This decision ensures that Mr. Trump’s legal bills continue to grow. The appeal is coming, as certain as the sun will rise tomorrow.

    • timbozone says:

      Not if His Trumps grifted donations start drying up. This ruling hopefully makes that a more likely outcome.

  6. Peterr says:

    I may be reading too much into this, but the opinion was not issued under the name of a single author, but “per curiam.” Is this the panel’s way of signalling to SCOTUS that this wasn’t a Democratically-appointed judge taking charge and persuading the other two, but that is was not just a unanimous vote but also a strongly unanimous opinion explaining that vote?

    • doghelpsgod says:

      Yes. I think it was a way of saying that an independent judiciary – separation of powers – upholding the law is still in business. I’m not sure if it was a signal to SCOTUS (do they even listen?) but to the country at large. The opinion certainly gives SCOTUS a good reason to deny cert.

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    • emptywheel says:

      Yes. DC Circuit often does that. But you can definitely hear Henderson and Pan’s voices, both of them, quite loudly in here.

      The reason we waited for a month was to get a per curiam opinion, and it may make all the difference at SCOTUS.

      • Adam Treat says:

        Agreed. This was a very strongly written ruling that seemingly forecloses any hope Trump might have of further courts taking it up. I thought Henderson and Pan’s voices shined through and very forcefully at that. The take down of his Take Care claims makes me think Henderson viewed his arguments almost as insulting. Which is great. Because they *were* insulting to the very idea of rule of law.

        • Peterr says:

          Yes. Parts came across like the panel was saying “OK, you sound like a whiny child here, so we’ll explain it to you as if you were a 6 year old.”

          If you offer arguments that insult the court’s intelligence, that will come back on you HARD.

        • Bugboy321 says:

          I find this ruling to be something of a catharsis for that reason. I saw the post yesterday about the rule of law and sparkle ponies, but this is a completely different set of emotions for me. This phenomena of treating the rule of law as optional has kept me up at night.

        • Ginevra diBenci says:

          It read to me as a threnody of legal voices woven masterfully into one. The scope of their arguments showed deep historical background; their responses to the appellant revealed creative thinking, as in their conclusion that he seeks to place himself outside the three branches of government and thus untouchable; and their writing displayed the elegant clarity that our nation’s best judges have always been known for.

          This was worth the wait for me, and if its per curiam status nudges the en banc court and (I hope) SCOTUS to deny cert, it may be worth the wait for Jack Smith and the rest of the country.

      • Rugger_9 says:

        Concur about the signal to SCOTUS, and I would only suspect that Thomas and Alito would vote to overrule, and possibly ACB and Kavanaugh to join them. The opinion is that good, complete and supported. Roberts and to a lesser degree Gorsuch are not going to be willing to give a blank check to a President. That Joe Biden is President is all the more reason.

        As for why SC Smith didn’t charge for incitement and probably will not, I agree that the separation helped the court to this outcome. I also don’t really see how benefit of adding that charge set would offset the risk that a bogus double jeopardy claim would get traction.

      • Maureen A Donnelly says:

        The opinion coming from the court should carry weight with all the conservative voices hopefully. TY for your diligent work. I’m impressed with your doggedness and am grateful you brought the Magic Sparkle Pony to the table. as we say in Miami: dalé.

    • CaptainCondorcet says:

      That was my reading as well. They are assuring their colleagues there is no use to en banc (not that that was ever a real threat) and asking SCOTUS just how much they’re willing to stick their necks out for TFG. After this ruling, it would be pretty far. The only question is whether there are 4 justices interested in throwing a delay bone to Trump to muddy the timeline waters. 2 automatically come to mind, but will anyone else join them?

      • Adam Treat says:

        I have no doubt that Alito and Thomas will sycophantically vote for delay. Doubt (but not totally) that Barrett, Roberts or Gorscuch will. Kavanaugh could go either way; he is the biggest tea leaf reader of the lot.

        • harold hecuba says:

          Agreed. Though I think Kavanaugh isn’t completely unhinged so maybe have a little more faith that he’d listen to reason. (then again, my glasses go have that rosy tint)

          • Rwood0808 says:

            My guess is he’ll test the wind first. If he can be number four he will. If he can only be number three he won’t.

            • timbozone says:

              Interestingly, there may be one or more jurist on the Supreme Court that are interested in a “legacy ruling” “for the good of posterity” around this very subject. So, although I would hope it that SCOTUS will simply deny the petition out of hand, if filed, etc, there may be some “historical pressure” to get in a more definitive concurrence to today’s Appeals court ruling.

              Also interestingly, the DC Circuit Courts per curiam is likely binding on all Federal courts in which such an appeal might be raised. Thus, Cannon’s court may be bound by today’s ruling. As a reference, here is a link to what the Federal Court website says the DC Circuit (13th Appelate Panel) is all about (4th paragraph):


  7. grizebard says:

    We do not address policy considerations implicated in […] a state prosecution of a President, sitting or former.

    (my emphasis)

    So Fani Willis (eg.) could possibly (somewhere else) make this all go round again…?

    • Peterr says:

      I think this is more or less boilerplate. “We’re ruling specifically on a federal issue, and leave aside implications at the state level.”

  8. harpie says:

    Steve Vladeck on what’s next:

    10:26 AM · Feb 6, 2024

    As @bradheath flags, the D.C. Circuit panel did *exactly* what we predicted on timing: Trump has until next Monday to ask #SCOTUS for a stay, otherwise the trial-court proceedings can resume.

    So the Supreme Court will have to decide next week whether it’s going to intervene now: [screenshot]

    In other words, all Trump can do to keep the case on hold is to go to #SCOTUS by next Monday.

    The Court could deny the stay;
    it could grant the stay;
    or it could decide to just resolve the immunity question *now*.

    Either way, we should know a lot more within the next two weeks.

    And for those asking if Trump can seek en banc review, technically he can, but it won’t help to keep the lower-court proceedings on hold. The only way to do that is to go to #SCOTUS by next Monday.

    • Scott_in_MI says:

      My understanding has been that unless the panel “did something crazy” (can’t remember if I heard that specific phrasing from Popehat or one of the Lawfare folks), we should expect the DC Circuit to deny an en banc rehearing – apparently the circuit rules give them pretty broad discretion to do so. If an en banc request won’t stop proceedings, I can’t see any reason why the Trump team would bother with that step.

      • emptywheel says:

        Not my forté, and it is Steve’s. But I read him as saying that the ONLY way Trump gets a stay is to go to SCOTUS immediately. So an en banc review would result in the trial restarting.

          • Adam Treat says:

            From the order:

            “The filing of a petition for rehearing or rehearing en banc will not result in any withholding of the mandate, although the grant of a rehearing or rehearing en banc would result in a recall of the mandate if the mandate has already issued.”

        • Adam Treat says:

          No, if they decide to grant an enbanc hearing, then I think the mandate would be recalled and the trial paused.

        • Shadowalker says:

          If I read the order correctly, either granting a rehearing or en banc review recalls the mandate should it go into effect, but only if either are granted. I suspect the per curium was a message to both SCOTUS and the rest of the circuit.

        • P J Evans says:

          (It’s “forte” – French)
          So the former guy loses again in court. He’s what, now, 0-for-October?

    • Sussex Trafalgar says:

      An En Banc review doesn’t stop the lower court trial from taking place this Spring or early Summer.

      Trump’s only hope to stop his lower court trial is SCOTUS.

      • earlofhuntingdon says:

        The judgment clearly states that if Trump petitions for rehearing or en banc review at the DC Circuit level, that does Not continue the stay. If either petition is granted, though, the stay resumes.

        The reality Trump faces is that neither petition is likely to be granted. His rescue – at this stage of the proceeding, on this case – depends exclusively on the Supremes.

      • Badger Robert says:

        It leads to believe that the entire roster of appellate judges for the DC Circuit has a general idea of how the issues were going to be handled. It makes me think many people were brought in to make suggestions and to proof the opinion.

        • Hcgorman says:

          In the seventh circuit it is common when breaking new ground to circulate the opinion to the full court before releasing the opinion. That could be part of the reason this took a tad longer than some of us thought it should. I don’t think there will be any surprises from the full dc court.

          • emptywheel says:

            Did not know that, but still had absolute certainty that they knew DC Circuit would not grant en banc (not least bc once you’ve lost Henderson you’re not going to have the votes).

            Q is, does SCOTUS know that?

  9. cmarlowe says:

    The timing of Marcy’s excellent and now prescient post yesterday and the arrival of the DC circuit decision today is pretty jaw-dropping to me.

    • BRUCE F COLE says:

      Actually, she was prescient yesterday!~

      This ruling is as tight as a tick. If SCOTUS gets 4 on board for cert, I’ll be certifiably gobsmacked.

      Trump’s whole Impeachment/double jeopardy bullshit was a slap, with extreme prejudice, in the face of the entire judiciary. That alone should be the10 foot pole all but the most sychophantic Justices swat this thing down with (as if the rest of his arguments are worth the soiled TP he submitted them on anyway).

      It occurs to me that the biggest meta-difference between this and Bush v Gore is that the time-crunch is working against the cheaters.

    • Adam Treat says:

      Indeed. I’m quite sure Trump is relieved to know that President Biden can’t order seal team six to assassinate him with impunity.

        • Adam Treat says:

          It just occurred to me that some might not be able to tell that the above comment was sarcastic. I don’t think Trump is actually relieved to know that President Biden can’t order seal team six to assassinate him with impunity. It was a sarcastic joke that I thought would be obvious.

        • Tim Benson says:

          For a brilliant man who constantly bullies others, you don’t seem to know where a comma goes. It should be like this: Oh, that is the brilliant “Adam,” again. It isn’t a typo, because you have done it before. I’m guessing that your penchant for bullying others is because your physical attributes are not very impressive. I’m guessing you are either very short, morbidly obese, stunningly stubby, or extraordinarily weak and frail. DID I NAIL IT? I suppose I’m bullying YOU, but I despise bullies, and I only bully bullies.

          [Moderator’s note: There are more acceptable ways to complain about bullying. The ad hominems here are not one of them. /~Rayne]

  10. bmaz says:

    A unanimous decision from a potentially split panel…What A Shock! Who could have known? A month was more than reasonable for such a tight decision. Informed people have said this all along.

    Golly, I hope the all powerful headmistress, Rayne, permits my comment!

    • RockyGirl says:

      Bmaz, welcome back! Your voice – much as I might have not liked its tone at times – has been missed.

    • SteveBev says:

      Unanimity seems very significant. And there were some knotty problems to resolve, eg the jurisdictional issue, where the answer found by the court was not one argued by any party. Getting it right, unanimously and in a relatively short period is the best outcome anyone should have hoped for.

    • rattlemullet says:

      Not that it matters to anyone on this blog or even you, but your experience, knowledge and pointed commentary are needed here. I hope you start participating fully going forward.

    • johanmc says:

      Hey bmaz. Nice to see you commenting again. Looking forward to seeing Hamilton in a Ferrari next year…should be fun.

      [Moderator’s note: SECOND REQUEST: Please choose and use a unique username with a minimum of 8 letters **AS INDICATED IN THE FIRST COMMENT OF THIS THREAD**. You were asked to use a site standard compliant name in October 2023; “johanmc” is your SIXTH username to date, including johan/JohnMcG/JohnMc/John Mc/McGee, none of which meet the 8-letter minimum standard. /~Rayne]

    • soundgood2 says:

      Give it a break, bmaz. Act like the adult you are and comment without the attitude. You have a lot to add, can you just rein it in a bit? We would all benefit from your opinions minus the unnecessary and bullying snark.

  11. boatgeek says:

    Sparkle Ponies descend from the heavens!

    And now, back to “work” lobbying the state legislature and the city for good stuff. Then it’s back to federal issues until early November.

  12. Error Prone says:

    This seems to touch upon the documents case, the removal part, which was done while still President.

    Apart from continuing to hold government documents which were not his, removing them from government custody was an act that entails no immunity, under parallel reasoning.

    • Scott_in_MI says:

      As I recall, the charges against Trump in that case specifically pertain to his conduct expressly post-presidency, namely his refusal to surrender documents when presented with a lawful subpoena and his acts of conspiracy to conceal them from the federal government.

      • dopefish says:

        Their case is already pretty solid based on the things Trump did with U.S. national defense info documents after he term as President ended. No need to mix in things he did while still President and give his legal team more options to delay or confuse the issues.

        If that case hadn’t ended up assigned to a judge so favorable to Trump, it might conceivably have gone to trial before the election. (As it is with Judge Cannon running it, that possibility seems… remote).

  13. Ironic Chef says:

    I can see the ketchup and fry markings on the nearest wall to Trump right now.
    From this synopsis it seems this court has covered all possible bases and Trump’s legal team has to leave the field on a walk off home run.
    Exceedingly good news that I’m glad to have heard first on this venue. Kudo’s to emptywheel and the wrist injury that kept me home from work today!

    • BRUCE F COLE says:

      “Waltine!!! Call housekeeping and get your ass over here with handi-wipes and a curry comb!”

      Sorry, but you started it.

  14. SteveBev says:

    I was gratified to see the court adopt jurisdiction based on the collateral order doctrine. Its reasoning for rejecting the dictum in the Midlands Asphalt case, which had seemingly posed a knotty jurisdictional question, is here
    Pp 9-18

    Obviously in covering 9 pages it is quite densely reasoned, citing a number of precedents for the detailed nuance.

    But I am pleased to have sketched the essence here:

  15. Amicus12 says:

    The release of this two days before the oral argument in the Colorado case is no coincidence, yes?

    Obviously an exercise in log-rolling, and I found myself laughing out loud when I got to footnote 14 and its acknowledgement that none of this is about any official Presidential conduct . . . but pretending otherwise is how we chose [to reach common ground] to decide this.

    Sort of like the Bible there is something in here for everyone – except perhaps Trump.

  16. vigetnovus says:

    This may be a stupid question, and I assume the answer is no, but can any of the opinion be entered into evidence? That is it does seem as though the DC Circuit has made a finding of fact that Trump was attempting to violate the rights of the citizenry to vote and have their vote counted.

    I assume rules of evidence prohibit this, but then again, you seldom see interlocutory appeals during Federal trials, so this may be an area where the defendant seeks one at their own risk.

    • Peterr says:

      The answer is no.

      What the court did here, was a lot of “if for the sake of argument we assume the allegations are true, then does either an immunity defense or double jeopardy argument hold any water that would result in voiding a trial before it begins?”

      And the answer they came to was “No. Seriously: no. Not even close. Just go away, please.”

      • Chetnolian says:

        You are right of course, but the absence of the word “alleged” before “conduct” in this sentence is perhaps revealing; “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct”

        • Attygmgm says:

          Early in the opinion the court discusses accepting the allegations of the indictment as being true. So that presumption carries through their discussion of Trump’s conduxct.

        • dopefish says:

          IANAL but it seems to me that Trump’s “conduct” consists of the things he actually did—which would be a question of fact, to be decided at trial. I think that sentence is just saying, if any of his actual conduct was non-discretionary and criminal, he could be held accountable for it.

          “Alleged conduct” would refer to something he is specifically alleged to have done (e.g. in the indictment).

          You see journalists throw the word “alleged” in front of descriptions of someone’s conduct all the time, but that’s just to avoid opening themselves up to defamation lawsuits. Instead of reporting “X did Y” as if it were a proven fact, they report instead that X has been accused of doing Y, using only one extra word.

  17. Terrapin says:

    We waited four weeks for this? What did they spend all that time hashing out? It seems they could have had an opinion like this one within days. Please tell me how I am wrong.

    • Adam Treat says:

      I think you underestimate the amount of time it takes to form an opinion like this – agree on the particulars – and write it all down in a bulletproof way so that it is not overturned on technicalities or something overlooked.

    • Gerard Plourde says:

      I hope you were writing using the”sarcasm font”.

      This is a very detailed and complex opinion that was issued unanimously. The time taken to achieve this result is completely understandable.

    • Amicus12 says:

      Let’s try and deconstruct things.

      J. Henderson wanted to write on the merits, wanted to advance her position that the President’s compliance with federal criminal statutes is not discretionary, and wanted to address each and every issue, notwithstanding Trump’s apparent waiver of several.

      J. Pan and Childs may have wanted to dismiss on grounds of jurisdiction. They may have wanted to find that none of Trump’s arguments have merit because he was acting in a personal capacity, and that he had waived every argument except his alleged immunity based upon a negative inference from the Impeachment Judgment clause.

      It is entirely possible that there was a circulation of many competing outlines or synopsis of decision.

      Pan and Childs likely made concessions for the decision to be unanimous and for J. Henderson to author the initial lead decision concerning the merits: the ministerial versus discretion discussion. If this analysis is correct, J. Henderson was in a strong bargaining position.

      But there were things that Pan and Childs wanted to say even if they were going to concede to this framework.
      Even after the framework was agreed upon, individual sections had to be written and reviewed and agreed upon by each judge. There are specific words in the decision that appear to be concessions to a particular judge.

      And my own pet theory is that the panel (or some of them) were keenly aware of Thursday’s oral argument in the Colorado vote. The Court will vote after oral argument and specific votes may well turn in part on the appeals court’s immunity decision. How the sausage gets made is not necessarily pretty.

    • emptywheel says:

      Yes. What could have been a fractured 3 opinions that invited review is a solid per curiam opinion.

      You’re basically complaining that we got a far better result, one that is likely to save time.

      • Amicus12 says:

        There is pragmatism and there is articulating the rule of law. Much is said in the decision that need not have been said. I’m pretty sure I understand why this is the way it is – that doesn’t mean I have to care for it as the law and how it may or may not play out going forward.

        Part of what deeply troubles me is that the decision could easily lead a reader to believe that the opinion is addressing conduct within the ambit of Presidential authority. It dignifies the conduct of a scum bag.

          • Amicus12 says:

            We have a unanimous, comprehensive, and extensively reasoned decision denying Trump’s appeal. I certainly get all of that. And maybe there was some deference that played in to all of this.

            And hopefully, the Court refuses to issue a stay and take the case. But one nagging pragmatic concern is that having written so much it might compel some group of Justices to say “that whole ministerial-discretionary reasoning isn’t correct – we need to fix that.” Big broad decisions can attract undue attention.

            In any event, we should know how this will play out fairly soon.

            • BRUCE F COLE says:

              On Wittes’ lawfarelive edition yesterday they brought up the likelihood that the whole Circuit might have been offering their input as well, a hunch but not a bad one, imo, and one that would also add to the time it took to produce the opinion.

              They said that their 2/12 appeal deadline to pevent the lifting of the stay, as it effectively forces Trump to bypass an en banc appeal as a stalling tactic, means that they probably had general input from their colleagues in order for that not to seem like a procedural slap in their colleagues’ faces.

              (toward the end of the podcast, but the whole thing is worth watching)

          • Ginevra diBenci says:

            They do make that distinction, between the office of president and the office-holder, in precise detail.

    • Tech Support says:

      Even if it was just my personal hot take on some random topic, it would probably take me a month to get you 57 pages with full citations.

  18. Badger Robert says:

    Why would the USSC take this issue without a result and a record?
    1. Trump could be acquitted.
    2. He might die.
    3. The true sovereign of the US may decide Trump is finished by defeating him in November.
    4. Or Trump could win and become dictator for life. But he will still eventually pass away.

    • Adam Treat says:

      For Alito and Thomas at least I have no doubt they will at least hold out for delay. I also would not be the least bit surprised if they decided to grant Trump what he wants. The most natural one being the cockamamy double jeap one that is absurd, but not so absurd for Alito and Thomas to hide behind with the very little shame they are able to muster.

          • bmaz says:

            Oh, dear Adam, I have been here forever.

            Check your facts. And you are yet another mouthy newcomer here that out talks his knowledge and experience.

            Go away and spare this blog of your bullshit.

            • Adam Treat says:

              Oh dear you’re a pleasant one aren’t ya! Bless your heart.

              If it’ll make it any easier on ya old dog I promise not to pee on any of your sign posts :)

              • bmaz says:

                Fuck your “heart”. You are a noisy interloper. You are lucky that Rayne and Marcy excised me, or you would already be done. Fuck off.

      • vigetnovus says:

        I agree with this. I think the double jeopardy argument is a wide enough window for a pretext to grant cert. The DC circuit did not definitively settle this. And combined with my comment below, because of the jurisdiction argument if you’ve got four for cert, you must have five for a stay.

        • Operandi says:

          I’m not sure what opinion you read, but they tore the Double Jeopardy argument to shreds, and then came back and beat it to death a second and third time. They convincingly demonstrated that impeachment was neither a Doubling of the indictment, nor was it a form of Jeopardy, both of which must be true.

      • Ginevra diBenci says:

        If this ruling did one thing thoroughly, it was drop-kicking the moronic double jeopardy argument out the window. Not just once, but from every possible direction, including Blockburger.

        Any SC justice taking this up on double jeopardy would look like a fool.

  19. vigetnovus says:

    I thought about this some more, and I’m concerned about the collateral doctrine jurisdiction argument. (NAL, of course).

    Because the DC Circuit so effectively argued it has jurisdiction by saying Trump’s claim cannot be remedied after final judgement, does that not basically mean you only really need four justices to issue a stay here (instead of the usual five)? I say that because even if there were a justice that was on the fence about the merits of the case but wanted to grant cert, they’re basically forced to vote for a stay because of the argument the DC Circuit puts forward here on jurisdiction.

    And it’s really the stay that matters right now, not the granting of cert.

    • Adam Treat says:

      So granting cert in order to delay and then ultimately find they don’t have jurisdiction to rule on it till after conviction? Yeah, no doubt Alito and Thomas would do this in a heartbeat. It is just the kind of ridiculous circus I’d expect from them.

      • Adam Treat says:

        OTOH, note if the appeals court found they didn’t have jurisdiction that also would have been appealed to supremes and Alito and Thomas could have done the exact same tactic just in the opposite direction.

      • vigetnovus says:

        No, I am saying that if you have the four who absolutely want to review this decision (which is all you need for cert), logically it is impossible to not grant a stay given that the DC Circuit has conceded that in order for them to have jurisdiction, the relief that Trump sought cannot be available to him after judgement (thus the appeal must be interlocutory). Which means any appeal of the DC Circuit’s decision must also be interlocutory.

        Normally, you need five votes to stay a lower court decision pending the outcome of the appeal, not four.

          • vigetnovus says:

            Fair enough, I agree with that. My point is that the bar might be a bit lower than it normally would be here.

    • timbozone says:

      How about if they don’t issue a stay but still agree to hear the appeal of the Appellate Courts ruling? (NAL, of course.) ;D

      “Our ruling, 7-2, is that the Appellate Court made a really, really good ruling that we want our names on too!”

  20. soundgood2 says:

    So as to the stay, it is gone because it was granted in order to argue at the appellate court but It remains in place to allow for an appeal to SCOTUS? If he does file the appeal by Monday, then SCOTUS could continue the stay or not if they do not refuse to take the case? Trying to figure out when Judge Chutkan might be able to restart the trial and set dates.

    • earlofhuntingdon says:

      That’s correct. It’s extremely unlikely that the DC Circuit would exercise its discretion to hear this case en banc, especially after this unanimous opinion.

      Trump has a week to seek cert. from the Supremes, something even his lawyers should have anticipated and prepared for. It may take a week for the Supremes to decide it, something they will have anticipated and prepared for.

      Alito and Thomas would probably grant, possibly Gorsuch. I don’t think Barrett and Kavenaugh would go for it, and Roberts would be against it. It’s not a good platform for them, they have a full plate of Trump-related business already, and they can save Trump’s ass later, if they choose.

      • vigetnovus says:

        Why June? Is that when the Supremes would decide on cert? I assume that’s because there is no more room on the docket for this term?

        And if that’s the case, that means they won’t hear the case until the next term in September, so doesn’t that mean we kiss a trial goodbye?

        • earlofhuntingdon says:

          June is the traditional end of the Court’s annual term, when it usually issues opinions on cases heard that term.

          The date is not related to whether and when the Court would accept cert., which is likely to be within a week of Trump asking it to do so.

        • c-i-v-i-l says:

          No, if they’re going to grant cert, that’s likely to happen fairly quickly, and then they’d rule by June.

          • vigetnovus says:

            Well, then I guess that’s good. Worst case scenario… we don’t get a trial till the summer or early fall.

            I hope you are correct about that.

        • earlofhuntingdon says:

          Lisa Rubin, on MSNBC, is cynical about whether the Supremes will accept cert. and when they might decide the case if they do. She’s concerned that they might hold it over and not even hear it until the October term, ensuring that no decision would be issued before the election.

          That would be a giant leap of political electioneering beyond Bush v. Gore. I’m not sure there are four justices ready to do that.

          • Adam Treat says:

            If they thought they could get away with it – and they probably could – they’ll probably do it. However, they won’t get away with anything if Trump is reelected. He won’t countenance any dissent on their part.

            • Rwood0808 says:

              I don’t see the “probably” anywhere.

              They CAN if they want to and there is nothing stopping them from doing so. Nor are there consequences once they have.

              Do they want to? Thats the real question. This is their chance to rid themsleves of their trump problem once and for all, so I give it a strong maybe.

              • Adam Treat says:

                Much less than one percent for me. They don’t sense the danger and there is zero chance they’d get rid of him for political reasons and much less than zero for principled reasons.

            • timbozone says:

              On the otherhand, they would be holding the “No you ain’t!” card if they did hold it over until October.

    • earlofhuntingdon says:

      To be more precise, the judgment states that if Trump files for cert., the stay continues until the S.Ct. decides whether to accept cert.

      If he files for rehearing by the DC Circuit panel or en banc, the stay does NOT continue. But if Trump’s petition for rehearing or en banc consideration is granted, the stay comes back into force.

      • AllTheGoodIDsWereTaken says:

        Question – does the mandate ruling say that he has to file for cert by Monday, or rather that he has to apply for a stay pending a petition for cert by Monday? Is it possible that Trump could simply file for a stay saying that he intends to petition for cert in due course? I may be over-reading it, but the “application” appears to be related to the stay and not the cert petition. In other words, if Trump seeks a stay on or before Monday, then the stay continues until the Supremes decide how to handle that request.

        In case not obvious, IANAL, so apologies if this is a dumb question (e.g. if impossible to seek a stay before the cert petition)! If not a dumb question, this seems to raise an important timing question – namely, how long would they have to petition for cert?

        • timbozone says:

          You’d think that Trump’s lawyers are going to face an uphill battle if they’ve got no there there now. Either they have an appeals theory ready or there really isn’t much of one left, given the ruling today. So, my Not-A-Lawyer guess is next Monday is the deadline.

  21. earlofhuntingdon says:

    Ken Dilanian’s facile and imprecise commentary on MSNBC continues to be empty-headed enough to be beamed into everyone’s living room.

  22. xyxyxyxy says:

    Re- No other personality in public life can begin to compete with him in access to the public mind through modern methods of communications.
    It looks like these old fogies have never heard of Taylor Swift.

    • timbozone says:

      Honestly, the recent controversy is because of Trump’s supporters making it apeshit about Trump. Taylor Swift does not get more media coverage than Trump at this point…and it’s only going to get worse as we head deeper into the 2024 election season.

      • xyxyxyxy says:

        I can’t prove that she gets more media coverage than he does but i’m willing to say that more people younger than 40 are watching her than him and possibly even those up to 50 or even 55. And they are probably turning him off once there’s even have a hint that he’s going to appear.

    • Just Some Guy says:

      What ruling are you referring to? Can you please share a news story from a reputable outlet? The only articles that I could find regarding the docs case were about Cannon holding CIPA hearings this week.

      • David F. Snyder says:

        https ://w ww.msn.com/en-us/news/politics/sparse-and-undifferentiated-response-mar-a-lago-judge-shuts-down-jack-smith-s-attempt-to-keep-government-witnesses-secret-in-trump-motion-to-compel-setting-stage-for-unredacted-release/ar-BB1hSKRp

        Even more recent:
        https ://w ww.nbcnews.com/politics/donald-trump/trumps-lawyers-look-get-mar-lago-classified-doc-charges-tossed-rcna137742

  23. Alan Charbonneau says:

    Although two very different issues were involved, this ruling reminds me of the judges opinion in Kitzmiller v Dover. In that case Judge John E. Jones II (a conservative mentored by Rick Santorum no less), issued what ACLU Pennsylvania described as a “blistering 139-page opinion”

    IANAL, but I read two books about the trial and I also read about 3/4 of the judge’s opinion because it’s so interesting. It was well-reasoned, meticulous, and left little room to appeal. It also reinforced the applicability of the Establishment Clause, something conservatives like to insist means something other than separation of church and state.

    From Judge Jones ruling: “The proper application of both the endorsement and Lemon tests to the facts of this case makes it abundantly clear that the Board’s ID Policy violates the Establishment Clause.” (ID = Intelligent Design)

  24. wa_rickf says:

    This ruling is NOWHERE to be found at Fox News.com. The GOP Mayorkas impeachment failure ledes, with the Toby Keith passing close behind.

    • Littleoldlady says:

      I checked Fox News at 5pm CST while CNN was discussing the decision, to find continued discussion about the “border crisis”.

      [Welcome back to emptywheel. Please use the SAME username and email address each time you comment so that community members get to know you. I assume you’ve changed your username to avoid using your RL name; please be sure to use “Littleoldlady” every time you comment here forward. Thanks. /~Rayne]

  25. dopefish says:

    Plenty of little gems in the ruling, like this bit from the top of page 53:

    As a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence. … Former President Trump’s acquittal in his impeachment trial on the charge of inciting insurrection makes this point. The forty-three Senators who voted to acquit him relied on a variety of concerns, many of which had nothing to do with whether he committed the charged offense.


    I also like footnote 13 on page 49, which calls out by name the 30 senators who made statements arguing they lacked the power to impeach Trump a second time because he was already out of office. (mentioned again at the bottom of page 53.)

    • dopefish says:

      Ah, Dr. Wheeler pointed out the same things in the article.
      Apologies for commenting before reading it (I went and read the ruling first).

      Can’t wait to see if the Supreme Court is willing to stick their… appendage into this, or if they just deny cert, or issue a one-sentence affirmation, or what.

      • Rayne says:

        I wonder if their names all fall within the same circle of a Venn diagram composed of the 63 members of Congress who signed a resolution declaring Trump didn’t do an insurrection.

        RollingStone’s head on this article = *chef’s kiss*

        Republicans Declare in Resolution That Trump Isn’t an Insurrectionist … Because They Say So
        The stunt by Matt Gaetz and Elise Stefanik comes ahead of Thursday’s Supreme Court hearing on the former president’s ballot eligibility

        By Gideon Hess | RollingStone | February 6, 2024

        • earlofhuntingdon says:

          That diagram might coincide with those congresscritters – who might have done something beyond signing a legally worthless non-binding resolution – who are worried that the statute of limitations is five years, for crimes committed relating to Jan. 6, 2021.

    • Ginevra diBenci says:

      dopefish, I felt actual physical relief when I got to that part about impeachment acquittals being premised on things other than actual innocence. I felt like I’d been screaming inside my head for so long about that very thing: how both Trump acquittals amounted to nothing more or less than political calculations by GOP senators, who either hoped/expected to benefit from their vote or (crucially) feared what Trump would do to them otherwise.

      The three judges could not, of course, label Trump a terrorist the way I have. But the way terrorism as a method has intersected with politics also potentially implicates the justice system. Here’s hoping Trump doesn’t succeed in that arena.

      • earlofhuntingdon says:

        A trial in the Senate is a civil, political event. The most senior federal elected officials in the legislature are making a political decision about whether to remove a federal officer for high crimes and misdemeanors. The standard of evidence is a preponderance of the evidence, and politics and custom, not a close reading of the law, control how Senators vote.

        That’s one reason why there is no double jeopardy in being subject to a political trial in the Senate and a later, criminal trial administered by an Art. III judge. Only Donald Trump has made the opposite, self-serving argument, which alone is a good reason to reject it.

        • BRUCE F COLE says:

          Another reason there’s no double jeopardy after impeachment is that the jury is, by design and definition, tainted. Voir dire would be impossible to include in a Senate trial, and it’s an indispensable component of any *real* jury trial, without which the process would break down irrevocably.

          The impeachment process is just a vague simulacrum of what happens in US courts, at best. The Trump impeachments illustrated that vividly.

          The one small beef I have with this ruling is that they confoundingly decided to entertain Trump’s double jeopardy claim to the extent that they pointed out that his J6 impeachment charges were not the same as the Smith J6 charges. That kind of pissed me off; it was totally unnecessary to give his bogus claim even that smidgen of acknowledgement. It was like saying, “You drove your car into the wrong ditch.”

          • dopefish says:

            When I read that part, I wondered if maybe that was Henderson aiming to discourage Jack Smith from bringing another charge later about incitement?

            But I’m not a lawyer, so my wild guess is not worth much.

          • Shadowalker says:

            Impeachment trials are not by jury. The Constitution even points that out explicitly in the jury clause.

            Article III
            Section 2 The Trial of all Crimes, except in Cases of Impeachment; shall be by Jury…

            They are independent processes that deal with different punishments, nor do they have to follow a sequence. Either can be started and completed before the other or even conducting both at the same time.

            • BRUCE F COLE says:

              Absolutely, but Trump is conflating the two processes, and I was just pointing out how utterly they differ. That clause of Article II makes it explicit, but still the Senate behaves like a jury that hasn’t been vetted and I’m just using that to highlight the point.

              I guess I’m perseverating over that section of the DC Circuit’s argument that gives marginal credence to Trump’s double jeopardy claim by pointing out that his impeachment charges aren’t the same as those in the Chutkan trial. I wish they’d just laid out how blatantly ridiculous it is to compare Impeachment to a jury trial, and left it at that. I’m still not getting why they did that.

          • Coyote50 says:

            I’m worried about this argument – it feels like it could be a problem in the future. All the verbiage about how the impeachment involved a “different charge” than the current case seems to contradict/undercut their argument that impeachment is not the same as a trial. It creates a feeling of ambiguity for me. It feels like it might leave room for someone who was impeached and then criminally charged to argue, “but but but it’s the same charge – look what the Trump case says”. Reminds me of the “I didn’t do it, but if you think I did, it wasn’t illegal” arguments that lawyers sometimes make that drive me crazy (and are not persuasive to jurors). I know they’re not arguing to a jury, but I don’t understand why they included it.

            IANAL, but I spent decades advising lawyers on cases and have read a lot of pleadings and opinions. I know these three judges are super smart and understand the law inside and out, so they must have a reason why they did it, right? But it still worries me.

            • Rayne says:

              Thanks for fuzzing the separation of powers. Not.

              How many times does it need to be said that impeachment is a political activity carried out by the House? Nixon left the White House to avoid BOTH impeachment, conviction, and removal AND criminal prosecution, which was the point acknowledged by Nixon’s acceptance of Ford’s pardon?

              • Coyote50 says:

                Duh. That’s my point. I don’t know why they would even address that the impeachment charges were that Trump committed insurrection and the charges in the Smith case do not include a charge of insurrection. Why even mention it if the real argument is that an impeachment is not a criminal charge? And with what we saw today in the 14th Amendment case, with questions about how and who determines if someone running for president committed insurrection, one answer might be that they are convicted in a criminal case. The appeals court judges saying that Trump was already impeached and acquitted of insurrection so it’s somehow important that the charges in the Smith case are different makes no sense to me. And it might give Trump or someone else an argument on appeal if they were acquitted in an impeachment and then charged criminally with the same thing. That’s what I’m saying. Bruce Cole above makes the same point, just more succinctly. I don’t even see why they gave that part of the double jeopardy argument any credibility at all.

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