The D.C. Circuit Court’s opinion in US v. Donald Trump on whether the former president enjoys a blanket immunity from criminal prosecution for his actions while president is now out. It can be found here.
It is a comprehensive opinion, and I think a correct one. Given my own scholarly interests, I was particularly anxious about how the court might handle the claim that an officer who has been acquitted in an impeachment trial cannot be criminally prosecuted, but I think the panel handled that issue correctly.
Interestingly, the panel went with the distinction in Marbury v. Madison between discretionary and ministerial acts and concludes that discretionary acts are largely outside the purview of the courts. But acts that violate a constitutionally valid criminal law also violate the president’s legal duties and thus cannot be understood to be purely discretionary acts within the constitutional and legal authority of the president to make.
Likewise, the court thinks the weight of functional considerations lean toward no blanket immunity in this context.
Particularly true that president cannot be understood to have blanket immunity for trying to steal an election.
Court does not find Trump’s argument of no prosecution if acquitted in an impeachment trial consistent with the text and purpose of the relevant constitutional clauses.
Importantly, court emphasizes that the impeachment process is a political process involving political charges and political punishments, and as such it does not trigger double jeopardy principles regarding criminal prosecutions in which criminal punishments are at stake.
We’ll see what the Supreme Court does with this.