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Donald Trump cannot use presidential immunity as a shield against criminal charges over alleged interference in the 2020 presidential election, a US federal appeals court has ruled.
In a unanimous decision handed down on Tuesday, the three-judge panel for the US Court of Appeals for the District of Columbia Circuit said he was not entitled to immunity because he was no longer president.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defences of any other criminal defendant,” the judges wrote in their order. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
The decision is a big setback for the ex-president in the federal criminal case brought by Department of Justice special counsel Jack Smith, which accused Trump of seeking to overturn the 2020 presidential election. It is one of four criminal cases he is facing as he mounts another campaign for the White House later this year. He is the frontrunner to clinch the Republican party nomination.
The outcome will almost certainly be appealed. Smith and his team had previously petitioned the Supreme Court to bypass the intermediate appellate court and decide in the first instance on the question of presidential immunity, but it declined to do so. The federal election interference trial, which was originally set to begin on March 4, has been put on hold by the lower court while Trump has pursued the appeal.
The DoJ declined to comment. Steven Cheung, spokesperson for Trump’s campaign, said in a statement that “if immunity is not granted to a president, every future president who leaves office will be immediately indicted by the opposing party. Without complete immunity, a President of the United States would not be able to properly function!”
Trump will appeal against the order, Cheung added.
Trump had argued that the conduct in question was related to his official White House duties, and that under the law presidents were shielded from criminal prosecution for such acts. Without near-total immunity, current and former presidents would be subject to a barrage of criminal cases, he has contended, writing in a recent social media post that “even events that ‘cross the line’ must fall under total immunity, or it will be years of trauma trying to determine good from bad”.
But the DoJ has argued that presidential immunity does not apply to Trump. A lawyer for the department said during the appeals court hearing that presidents were “not above the law”.
The DC appeals court agreed with the DoJ, writing: “We conclude that the interest in criminal accountability, held by both the public and the executive branch, outweighs the potential risks of chilling presidential action and permitting vexatious litigation.”
It added: “Instead of inhibiting the president’s lawful discretionary action, the prospect of federal criminal liability might serve as a structural benefit to deter possible abuses of power and criminal behaviour.”
The Supreme Court is set to hear a separate case on Thursday involving Trump that will weigh heavily on the presidential race: whether he should be kept off the Republican primary ballot in Colorado. The state’s high court found in December that Trump had engaged in insurrection and was unfit to be president based on evidence linked to January 6, 2021, when his supporters stormed the US Capitol in a bid to stop the certification of Joe Biden’s win.
The state of Maine also threw Trump off the ballot for similar reasons, but the ruling has been put on hold pending the outcome of the Colorado case at the Supreme Court.
The legal challenges against Trump have not seemed to dent his standing in opinion polls in recent months, however. He has pleaded not guilty in all cases, which he has framed as politically motivated.
