In a ruling that is likely to not make Donald Trump very happy, the Court of Appeals in Washington D.C. has ruled that the former president does not have immunity to avoid prosecution.

The immunity argument was quite a shot in the dark, so this ruling really should surprise no one.

The legally untested question before the court was whether former presidents can be prosecuted after they leave office for actions taken in the White House related to their official duties.

The Supreme Court has held that presidents are immune from civil liability for official acts, and Trump’s lawyers have argued for months that that protection should be extended to criminal prosecution as well.

They said the actions Trump was accused of in his failed bid to cling to power after he lost the 2020 election to Biden, including badgering his vice president to refuse to certify the results of the election, all fell within the “outer perimeters” of a president’s official acts.

But Smith’s team has said no such immunity exists in the US Constitution or in prior cases and that, in any event, Trump’s actions weren’t part of his official duties.

The case was argued before Judges Florence Pan and J. Michelle Childs, appointees of Biden, a Democrat, and Karen LeCraft Henderson, who was named to the bench by President George H.W. Bush, a Republican. The judges made clear their skepticism of Trump’s claims during arguments last month, when they peppered his lawyer with tough questions and posed a series of extreme hypotheticals as a way to test his legal theory of immunity — including whether a president who directed Navy commandos to assassinate a political rival could be prosecuted.

Trump’s lawyer, D. John Sauer, answered yes — but only if a president had first been impeached and convicted by Congress. That view was in keeping with the team’s position that the Constitution did not permit the prosecution of ex-presidents who had been impeached but then acquitted, like Trump.

Now, that doesn’t mean that this case will immediately be back on the court’s schedule after just being removed last week by Judge Tanya Chutkan. As is expected, the Trump legal team will be appealing the ruling to the Supreme Court. As readers will remember, special prosecutor Jack Smith tried to jump over the appeals court in order to have the Supreme Court rule on the immunity claim, but was denied. Now that the appeals court has ruled, the Supreme Court can either take the case up, or let the ruling stand.

Regardless, the appeal to the Supreme Court, and the limited time involved, makes the timeline for this case extremely problematic for Jack Smith. At this point, Professor Jonathan Turley is unsure whether the trial could even begin before the November election without violating the DOJ’s apparent previous standard.

…So, even without factoring in review time for the circuit, Trump could extend this process 135 days absent a successful move to expedite. The 90 day period alone would put a petition into May. Any rejection of appeals, without an expedited calendar, puts this into the…

— Jonathan Turley (@JonathanTurley) February 6, 2024

…While Smith will likely try again to expedite, the question is why the Supreme Court would suddenly see a need to curtail the time or process when it previously denied such efforts. There is no longer a scheduled trial on the docket and Smith is the prevailing party. That is…

— Jonathan Turley (@JonathanTurley) February 6, 2024

Turley’s full tweets read:

…Crunching the numbers, Trump can seek corrections in the short term but, even without a correction to the opinion, he has 45 days to seek an en banc where the government is a party. He then has 90 days after the rejected of any en banc decision. …

…So, even without factoring in review time for the circuit, Trump could extend this process 135 days absent a successful move to expedite. The 90 day period alone would put a petition into May. Any rejection of appeals, without an expedited calendar, puts this into the summer…

…That is without delays or a successful grant on by the D.C. Circuit (unlikely) or the Supreme Court (uncertain). After that appellate line is tied off, the parties would have to return to the trial court to resume the pre-trial work, which could take months. That puts the trial very close to the election and would raise obvious concerns given the long-standing DOJ policy to avoid trials with a few months of an election.

…While Smith will likely try again to expedite, the question is why the Supreme Court would suddenly see a need to curtail the time or process when it previously denied such efforts. There is no longer a scheduled trial on the docket and Smith is the prevailing party. That is not ideal for a motion to expedite further appeals.

In other words, the Trump legal team now might be able to run out the clock. This is not to say that the Trump legal team will end up prevailing on this argument of immunity – they have a much better argument in court that Trump’s speech was protected by the First Amendment and, notably, Jack Smith did not charge Donald Trump with “insurrection” or “incitement.” However, the Trump team knows that they would be getting a hostile Washington D.C. jury, with a judge who has already made a name for herself being harsh with January 6th defendants.

Jack Smith tried throwing the kitchen sink at Donald Trump with these charges for “obstruction” and “conspiracy,” while neatly avoiding the charges that the left wanted him to use. The Trump legal team has then thrown the kitchen sink back with these immunity claims, when they really should be making the case in court for Donald Trump’s First Amendment rights. But the most important factor right now is the calendar. Judge Chutkan put the case on indefinite hold as the appeals process plays out – and that part isn’t over yet. This isn’t to say that the Biden DOJ wouldn’t make a nakedly partisan move and push the trial, regardless of how close it could be to the election. It would just be seen as a nakedly partisan move, and would give Team Trump more ammunition in the argument that the cases against him are politically motivated.

So yes, Team Trump lost the battle in court today. However, the legal war is still ongoing – and it might end with the ballot box, not a jury verdict.

Featured image via succo on Pixabay, cropped, Pixabay license