Professional Documents
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Gov Uscourts Cadc 40415 1208593677 0
Gov Uscourts Cadc 40415 1208593677 0
No. 23-3228
v.
DONALD J. TRUMP,
APPELLANT
Paul M. Dorsey, pro se, was on the brief for amicus curiae
Paul M. Dorsey in support of appellant.
Victor Williams, pro se, was on the brief for amicus curiae
Law Professor Victor Williams in support of appellant.
2
Michael R. Dreeben and Raymond N. Hulser, Counselors to the
Special Counsel, John M. Pellettieri and Cecil W.
VanDevender, Assistant Special Counsels, and Molly Gaston
and Thomas P. Windom, Senior Assistant Special Counsels.
3
sequence is set by the Constitution, id. amend. XX, it did not
proceed peacefully. Indeed, from election day 2020 forward,
the government alleges that President Trump denied that he had
lost his bid for a second term and challenged the election results
through litigation, pressure on state and federal officers, the
organization of an alternate slate of electors and other means.
His alleged interference in the constitutionally prescribed
sequence culminated with a Washington, D.C., rally held on
January 6, 2021, the day set by the Electoral Count Act, 3
U.S.C. § 15(a), for the Congress to meet in joint session to
certify the election results. The rally headlined by President
Trump resulted in a march of thousands to the Capitol and the
violent breach of the Capitol Building. The breach delayed the
congressional proceedings for several hours and it was not until
the early morning of January 7th that the 2020 presidential
election results were certified, naming Joseph R. Biden as the
soon-to-be 46th President.
4
I. BACKGROUND
1
Former President Trump’s campaign and his supporters also
unsuccessfully challenged the election results in several state and
federal courts.
USCA Case #23-3228 Document #2039001 Filed: 02/06/2024 Page 5 of 57
5
Indictment charges that he and his co-conspirators allegedly
advanced their goal through five primary means:
6
January 6, 2021, he held a rally in Washington D.C. where he
“repeated knowingly false claims of election fraud to gathered
supporters” and “directed them to the Capitol to obstruct the
certification proceeding and exert pressure on the Vice
President to take the fraudulent actions he had previously
refused.” Id. at ¶¶ 10(d), 90(c).
7
Federal officials,” id. at 2–3; that his statements on the morning
of January 6 “encouraged — and foreseeably resulted in —
lawless action at the Capitol,” id. at 3; and that he attempted to
“subvert and obstruct the certification of the results of the 2020
Presidential election” by other means, including by threatening
a Georgia state official into manipulating the results, id. at 3–
4.
2
Off. of the Att’y Gen., “Appointment of John L. Smith as
Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).
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8
Jeopardy Clause; (3) statutory grounds; and (4) allegations of
selective and vindictive prosecution.
3
Former President Trump does not challenge the district court’s
other holdings at this stage: (1) that “the First Amendment does not
protect speech that is used as an instrument of a crime, and
consequently the indictment — which charges [Trump] with, among
other things, making statements in furtherance of a crime — does not
violate [Trump]’s First Amendment rights,” Trump, --- F. Supp. 3d
---, 2023 WL 8359833, at *15, and (2) that the Indictment does not
violate Due Process because Trump “had fair notice that his conduct
might be unlawful,” id. at *22.
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9
government’s motion to expedite the appeal, and oral argument
was held on January 9, 2024.
II. JURISDICTION
10
order doctrine is interpreted “with the utmost strictness in
criminal cases.” 489 U.S. 794, 799 (1989) (cleaned up).
11
United States v. MacDonald, 435 U.S. 850, 860 (1978)). The
Court rejected the defendants’ argument that the denial of the
motion satisfied the third prong. It explained that “[i]t is true
that deprivation of the right not to be tried satisfies the Coopers
& Lybrand requirement of being ‘effectively unreviewable on
appeal from a final judgment,’” but held that the defendants
had not asserted a right against trial in “the sense relevant for
purposes of the exception to the final judgment rule.” Id. at
801–02 (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463,
468 (1978) (“To come within the [collateral-order doctrine],
the order must conclusively determine the disputed question,
resolve an important issue completely separate from the merits
of the action, and be effectively unreviewable on appeal from
a final judgment.”)).
12
373 (2023) (quoting Reiter v. Sonotone Corp., 442 U.S. 330,
341 (1979)). Instead, opinions “must be read with a careful eye
to context” and the “particular work” that quoted language
performs within an opinion. Id. at 374; see also Goldman
Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct. 1951, 1968
(2021) (Gorsuch, J., concurring in part) (“[T]his Court [has]
often said it is a mistake to parse terms in a judicial opinion
with the kind of punctilious exactitude due statutory
language.”).
13
with § 1291.”4 Id. The Court ultimately chose to reject the
petitioner’s argument on a different basis, see id. at 877, so it
did not squarely resolve how to interpret Midland Asphalt. But
a fair reading contemplates that there are exceptions to Midland
Asphalt’s broad statement. See id. at 875. Other courts have
held to that effect. See Al Shimari v. CACI Int’l, Inc., 679 F.3d
205, 217 n.9 (4th Cir. 2012) (en banc) (reading Digital
Equipment to hold that qualified immunity’s “good pedigree in
public law . . . more than makes up for its implicitness”
(cleaned up)); McClendon v. City of Albuquerque, 630 F.3d
1288, 1296 n.2 (10th Cir. 2011) (interpreting Digital
Equipment’s “good pedigree in public law” comment as a
“binding” reconciliation of Midland Asphalt with the
immediate appealability of some implicit immunities).
4
Elsewhere, Digital Equipment refers to rights “originating in
the Constitution or statutes.” 511 U.S. at 879. Its broader
formulation comfortably encompasses implicit as well as explicit
immunities.
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14
Shimari, 679 F.3d at 246 (Wilkinson, J., dissenting) (calling
Midland Asphalt’s sentence “dictum” and a “lonely line”).
5
By contrast, the Supreme Court has explained why a right
against trial must ordinarily be “statutory or constitutional” in nature
to fall within the collateral-order doctrine. Midland Asphalt, 489
U.S. at 801. Whether a right can be effectively reviewed after final
judgment “simply cannot be answered without a judgment about the
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15
certainly did not provide one. The ultimate source of our
appellate jurisdiction is 28 U.S.C. § 1291, which extends to the
“final decision[]” of the district court. There is no basis in the
statutory text to treat the denial of an explicit immunity as final
but the denial of an implicit immunity as non-final. In both
cases, the “deprivation of the right not to be tried” would be
“effectively unreviewable on appeal from a final judgment.”
Midland Asphalt, 489 U.S. at 800–01 (quotation omitted).
Whether explicit or implicit in the Constitution, the right not to
stand trial must be “vindicated before trial” or not at all. Id. at
799 (quotation omitted).
B. CIRCUIT PRECEDENT
16
argued that he had immunity from the DOJ’s suit against him
because “the action was barred by the Speech or Debate
Clause” and, separately, because “the separation of powers
doctrine barred the DOJ from suing him” when a congressional
committee had already investigated him. Id. at 185. We held
that the latter claim falls within the collateral-order doctrine,
“recogniz[ing] claims of immunity based on the separation of
powers doctrine as an additional exception to the general rule
against interlocutory appeals.” Id. Granted, we acknowledged
that the separation of powers doctrine “does not provide as
precise a protection as the Speech or Debate Clause,” but we
focused on the “equivalent reasons for vindicating in advance
of trial whatever protection it affords.” Id. at 186 (quotation
omitted).
17
privilege” to the Speech or Debate Clause. United States v.
Cisneros, 169 F.3d 763, 770 (D.C. Cir. 1999).
18
least analogous enough to the Speech or Debate Clause or the
Double Jeopardy Clause to fit within our precedent.
19
from responding to criminal subpoenas issued by state and
federal prosecutors. See Trump v. Vance, 140 S. Ct. 2412, 2431
(2020); Nixon, 418 U.S. at 706; United States v. Burr, 25 F.
Cas. 30, 33–34 (C.C. Va. 1807) (Marshall, C.J.). In the civil
context, the Supreme Court has explained that a former
President is absolutely immune from civil liability for his
official acts, defined to include any conduct falling within the
“‘outer perimeter’ of his official responsibility.” Fitzgerald,
457 U.S. at 756. Both sitting and former Presidents remain
civilly liable for private conduct. Clinton v. Jones, 520 U.S.
681, 686, 694–95 (1997); Blassingame, 87 F.4th at 12–14.
When considering the issue of Presidential immunity, the
Supreme Court has been careful to note that its holdings on
civil liability do not carry over to criminal prosecutions. See
Fitzgerald, 457 U.S. at 754 n.37 (explaining the “lesser public
interest in actions for civil damages than, for example, in
criminal prosecutions”); cf. Clinton, 520 U.S. at 704 n.39
(noting special considerations at issue in criminal cases).
20
Our analysis is “guided by the Constitution, federal
statutes, and history,” as well as “concerns of public policy.”
Fitzgerald, 457 U.S. at 747. Relying on these sources, we
reject all three potential bases for immunity both as a
categorical defense to federal criminal prosecutions of former
Presidents and as applied to this case in particular.
21
He relies on Marbury’s oft-quoted statement that a President’s
official acts “can never be examinable by the courts.” Id.
(quoting Marbury, 5 U.S. (1 Cranch) at 166); see also Reply
Br. 6.
22
above the compulsion of law in the exercise of those duties.”).
Based on these principles, Chief Justice Marshall concluded
that, although discretionary acts are “only politically
examinable,” the judiciary has the power to hear cases “where
a specific duty is assigned by law.” Id. at 166. Marbury thus
makes clear that Article III courts may review certain kinds of
official acts — including those that are legal in nature.
23
relying on Marbury, Kendall and the distinction between “mere
ministerial dut[ies]” in which “nothing was left to discretion”
and “purely executive and political” duties involving the
President’s discretion. Id. at 498–99; see also Martin v. Mott,
25 U.S. 19, 31–32 (1827) (no judicial power to review
President exercising his “discretionary power” conferred by
statute). In holding that it could not enjoin the President from
using his discretion, the Court nevertheless affirmed the role of
the Judiciary in checking the other two branches of
government: “The Congress is the legislative department of
the government; the President is the executive department.
Neither can be restrained in its action by the judicial
department; though the acts of both, when performed, are, in
proper cases, subject to its cognizance.” Mississippi, 71 U.S.
at 500.
24
authority to determine whether he has acted within the law.”
Clinton, 520 U.S. at 703.
United States v. Lee, 106 U.S. 196, 220 (1882). “That principle
applies, of course, to a President.” Vance, 140 S. Ct. at 2432
(Kavanaugh, J., concurring).
25
communications, are subject to judicial process, even when the
President is under investigation.” Vance, 140 S. Ct. at 2427
(citations omitted); see also Clinton, 520 U.S. at 703–05
(recounting history of sitting Presidents complying with court
orders to provide testimony and other evidence).
26
proceedings” under the Speech or Debate Clause. Tenney v.
Brandhove, 341 U.S. 367, 372 (1951); see U.S. CONST. art. I,
§ 6, cl. 1. But outside of constitutionally protected legislative
conduct, members of the Congress perform a wide range of
“acts in their official capacity” that are not “legislative in
nature” and so can subject them to criminal liability. Gravel v.
United States, 408 U.S. 606, 625 (1972); see id. at 626 (Speech
or Debate Clause “does not privilege either Senator or aide to
violate an otherwise valid criminal law in preparing for or
implementing legislative acts”). In United States v. Johnson, a
Congressman was criminally charged with conspiring to
pressure the Department of Justice to dismiss pending
indictments of a loan company and its officers on mail fraud
charges. 383 U.S. 169, 171 (1966). The Supreme Court held
that the prosecution could not include evidence related to a
speech made by Johnson on the House floor because of his
constitutional immunity but, the Court made clear, Johnson
could be retried on the same count “wholly purged of elements
offensive to the Speech or Debate Clause.” Id. at 185.
Although his unprotected conduct constituted an official act
under Fitzgerald (communicating with the Executive Branch),
see id. at 172, it was constrained by and subject to “criminal
statute[s] of general application.” Id. at 185.
27
holder from obligation to obey the Constitution of the United
States, or take away the power of Congress to punish his
disobedience.” Id. at 348. The Court then addressed the
judge’s argument that the Court lacked the authority to punish
a state judge for “his official acts.” Id. Its response was
twofold. First, the Court described juror selection as “merely
a ministerial act, as much so as the act of a sheriff holding an
execution, in determining upon what piece of property he will
make a levy, or the act of a roadmaster in selecting laborers to
work upon the roads.” Id. The Court then explained that even
if juror selection is considered a “judicial act,” the judge had a
legal duty to obey the criminal laws:
6
The Court’s reference to “the State statute” is to the Virginia
law charging the county judge with the duty to select jurors in the
circuit and county courts. Ex parte Virginia, 100 U.S. at 340.
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28
More recent case law on the judicial immunity doctrine
affirms that judges are not immune from criminal liability for
their official acts. O’Shea v. Littleton confirmed the holding of
Ex parte Virginia in dismissing a civil rights action for
equitable relief brought against a county magistrate and
associate judge of a county circuit. 414 U.S. 488, 490–91, 503
(1974). The Supreme Court concluded that the requested
injunction was not the only available remedy because both
judges remained answerable to the federal criminal laws:
29
criminally for willful deprivations of constitutional
rights . . . .”); United States v. Gillock, 445 U.S. 360, 372
(1980) (“[T]he cases in this Court which have recognized an
immunity from civil suit for state officials have presumed the
existence of federal criminal liability as a restraining factor on
the conduct of state officials.”).7
7
In his brief, former President Trump contends otherwise,
primarily relying on two words in a single line of dictum from
Spalding v. Vilas to urge that judges are immune from criminal
prosecution for their official acts. Appellant’s Br. 19. Spalding was
a civil case in which the Supreme Court quoted an opinion of the
Supreme Court of New York: “The doctrine which holds a judge
exempt from a civil suit or indictment for any act done or omitted to
be done by him, sitting as judge, has a deep root in the common law.”
Spalding v. Vilas, 161 U.S. 483, 494 (1896) (quoting Yates v.
Lansing, 5 Johns. 282, 291 (N.Y. Sup. Ct. 1810)) (emphasis added).
The Supreme Court did not analyze the scope of judicial criminal
immunity itself and the quoted New York language is flatly
incompatible with the Supreme Court case law addressed supra. We
do not consider Spalding’s dictum binding on the question of judicial
criminal immunity.
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30
Blackstone and other early common law sources expressly
contemplated the criminal prosecution of judges on bribery
charges. See 4 WILLIAM BLACKSTONE, COMMENTARIES *139;
Perrin v. United States, 444 U.S. 37, 43 (1979). But this shows
only that judicial immunity did not stretch to shield judges from
generally applicable criminal laws, not that bribery was ever
considered a nonofficial act. And as explained supra, the
Supreme Court emphasized the official nature of the bribery
allegations in Dennis while reinforcing the judge’s criminal
liability.
31
of official immunity). “This inquiry involves policies and
principles that may be considered implicit in the nature of the
President’s office in a system structured to achieve effective
government under a constitutionally mandated separation of
powers.” Fitzgerald, 457 U.S. at 748. Our analysis entails
“balanc[ing] the constitutional weight of the interest to be
served against the dangers of intrusion on the authority and
functions of the Executive Branch.” Id. at 754.
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.
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32
1. CATEGORICAL IMMUNITY DEFENSE
33
more than a juror would be influenced by the prospect of post-
deliberation criminal liability, or an executive aide would be
quieted by the prospect of the disclosure of communications in
a criminal prosecution.
34
Trump’s 2021 impeachment proceedings for incitement of
insurrection, his counsel argued that instead of post-Presidency
impeachment, the appropriate vehicle for “investigation,
prosecution, and punishment” is “the article III courts,” as
“[w]e have a judicial process” and “an investigative process . . .
to which no former officeholder is immune.” 167 CONG. REC.
S607 (daily ed. Feb. 9, 2021); see also id. at S693 (daily ed.
Feb. 12, 2021) (“[T]he text of the Constitution . . . makes very
clear that a former President is subject to criminal sanction after
his Presidency for any illegal acts he commits.”). In light of
the express mention of “Indictment” in the Impeachment
Judgment Clause and recent historical evidence of former
Presidents acting on the apparent understanding that they are
subject to prosecution even in the absence of conviction by the
Senate, the risk of criminal liability chilling Presidential action
appears to be low.
35
taken for a forbidden purpose.” Fitzgerald, 457 U.S. at 756;
see id. at 753 (“In view of the visibility of his office and the
effect of his actions on countless people, the President would
be an easily identifiable target for suits for civil damages.”).
But the decision to initiate a federal prosecution is committed
to the prosecutorial discretion of the Executive Branch.
Prosecutors have ethical obligations not to initiate unfounded
prosecutions and “courts presume that they . . . properly
discharge[] their official duties.” United States v. Armstrong,
517 U.S. 456, 464 (1996) (quoting United States v. Chem.
Found., Inc., 272 U.S. 1, 14–15 (1926)). There are additional
safeguards in place to prevent baseless indictments, including
the right to be charged by a grand jury upon a finding of
probable cause. U.S. CONST. amend. V; Kaley v. United States,
571 U.S. 320, 328 (2014). “[G]rand juries are prohibited from
engaging in ‘arbitrary fishing expeditions’ and initiating
investigations ‘out of malice or an intent to harass.’” Vance,
140 S. Ct. at 2428 (quoting United States v. R. Enters., Inc.,
498 U.S. 292, 299 (1991)). Additionally, former President
Trump’s “predictive judgment” of a torrent of politically
motivated prosecutions “finds little support in either history or
the relatively narrow compass of the issues raised in this
particular case,” see Clinton, 520 U.S. at 702, as former
President Trump acknowledges that this is the first time since
the Founding that a former President has been federally
indicted. Weighing these factors, we conclude that the risk that
former Presidents will be unduly harassed by meritless federal
criminal prosecutions appears slight.
36
more profoundly manifest than in our view that ‘the twofold
aim (of criminal justice) is that guilt shall not escape or
innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger
v. United States, 295 U.S. 78, 88 (1935)). As the Nixon Court
explained, wholly immunizing the President from the criminal
justice process would disturb “the primary constitutional duty
of the Judicial Branch to do justice in criminal prosecutions” to
such an extent that it would undermine the separation of powers
by “plainly conflict[ing] with the function of the courts under
Art. III.” Nixon, 418 U.S. at 707.
37
that the Laws be faithfully executed,” were the sole officer
capable of defying those laws with impunity.
38
U.S. CONST. art. II, § 1, cl. 1. The Twentieth Amendment
reinforces the discrete nature of a presidential term, explicitly
providing that “[t]he terms of the President and Vice President
shall end at noon on the 20th day of January . . .; and the terms
of their successors shall then begin.” U.S. CONST. amend. XX,
§ 1. Upon “the expiration of the time for which he is elected,”
a former president “returns to the mass of the people again” and
the power of the Executive Branch vests in the newly elected
President. Burr, 25 F. Cas. at 34; U.S. CONST. art. II, § 1, cl. 1
(“The executive Power shall be vested in a President of the
United States of America.”) (emphasis added).
39
democratic and politically accountable official in
Government,” the only one who (along with the Vice
President) is “elected by the entire Nation.” Seila Law LLC v.
Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2203 (2020).
“To justify and check” the President’s “unique [authority] in
our constitutional structure,” Article II “render[s] the President
directly accountable to the people through regular elections.”
Id. As James Madison put it, “[a] dependence on the people is,
no doubt, the primary control on the government.” The
Federalist No. 51, at 253 (James Madison) (Coventry House
Publishing, 2015)9; see also Morrison, 487 U.S. at 731 (Scalia,
J., dissenting) (“[T]he Founders . . . established a single Chief
Executive accountable to the people” so that “the blame [could]
be assigned to someone who can be punished.”). Thus, the
quadrennial Presidential election is a crucial check on
executive power because a President who adopts unpopular
policies or violates the law can be voted out of office.
9
Federalist No. 51 is “generally attributed to Madison” but is
“sometimes attributed to ‘Hamilton or Madison.’” INS v. Chadha,
462 U.S. 919, 950 (1983).
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40
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.
* * *
41
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.
42
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.
43
to Indictment, Trial, Judgment and Punishment, according to
Law.” Id.
44
provision granting immunity to the President. See Vance, 140
S. Ct. at 2434 (Thomas, J., dissenting) (“The text of the
Constitution explicitly addresses the privileges of some federal
officials, but it does not afford the President absolute
immunity.”). The Impeachment Judgment Clause merely
states that “the Party convicted” shall nevertheless be subject
to criminal prosecution. The text says nothing about non-
convicted officials. Former President Trump’s reading rests on
a logical fallacy: Stating that “if the President is convicted, he
can be prosecuted,” does not necessarily mean that “if the
President is not convicted, he cannot be prosecuted.” See, e.g.,
N.L.R.B. v. Noel Canning, 573 U.S. 513, 589 (2014) (Scalia, J.,
concurring) (explaining “the fallacy of the inverse (otherwise
known as denying the antecedent): the incorrect assumption
that if P implies Q, then not-P implies not-Q”).
45
the Constitution of the United States § 782; see also Whether a
Former President May Be Indicted and Tried for the Same
Offenses for Which He was Impeached by the House and
Acquitted by the Senate, 24 Op. O.L.C. 110, 120 (2000)
(hereinafter, “OLC Double Jeopardy Memo”) (noting that
impeachment in Britain could have resulted “in a wide array of
criminal penalties, including fines, imprisonment, and even
execution”). The Framers chose to withhold such broad power
from the Senate, specifying instead that the Senate could
impose “only political, not ordinary criminal, punishments.”
OLC Double Jeopardy Memo at 124; see also Tench Coxe, An
American Citizen, Independent Gazetteer (Philadelphia), Sept.
28, 1787 (The Senate “can only, by conviction on
impeachment, remove and incapacitate a dangerous
officer . . . .” (emphasis in original)). That approach naturally
“raise[d] the question whether the other punishments the
founding generation was accustomed to seeing” in British
impeachment proceedings “could be imposed at all under the
new American government.” OLC Double Jeopardy Memo at
126. The Framers wished to make clear that a President would
“still be liable to prosecution and punishment in the ordinary
course of law.” The Federalist No. 65, at 321 (Alexander
Hamilton) (Coventry House Publishing, 2015); Coxe, An
American Citizen (“[T]he punishment of [a dangerous officer]
as a criminal remains within the province of the courts of law
to be conducted under all the ordinary forms and
precautions . . . .” (emphasis in original)). They therefore
added the provision that “the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7.
As the Office of Legal Counsel noted, that “second part makes
clear that the restriction on sanctions in the first part was not a
prohibition on further punishments; rather, those punishments
would still be available but simply not to the [Senate].” OLC
Double Jeopardy Memo at 126–27. In short, then, the Framers
USCA Case #23-3228 Document #2039001 Filed: 02/06/2024 Page 46 of 57
46
intended impeached officials to face criminal liability
“according to Law.” U.S. CONST. art. I, § 3, cl. 7.
10
Former President Trump also cites to Hamilton’s statement
in Federalist 77 that the President is “at all times liable to
impeachment, trial, dismission from office, incapacity to serve in any
other, and to forfeiture of life and estate by subsequent prosecution
in the common course of law.” The Federalist No. 77, at 378–79
(Alexander Hamilton) (Coventry House Publishing, 2015) (emphasis
added). This argument is similarly unavailing based on Federalist
77’s analogous use of “liable.”
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47
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.
48
discussion at the Constitutional Convention and ratifying
conventions regarding the Impeachment Judgment Clause).
Joseph Story explained that the Impeachment Judgment Clause
removed doubt that “a second trial for the same offence could
be had, either after an acquittal, or a conviction in the court of
impeachments.” 2 Story, Commentaries § 780; id. § 781
(noting the Constitution “has wisely subjected the party to trial
in the common criminal tribunals, for the purpose of receiving
such punishment, as ordinarily belongs to the offence”). Story
explained that without a criminal trial “the grossest official
offenders might escape without any substantial punishment,
even for crimes, which would subject their fellow citizens to
capital punishment.” Id. § 780.11
11
Former President Trump points to some historical evidence
that he considers countervailing. He notes that some state
constitutions explicitly provided for the criminal prosecution of a
party acquitted on impeachment charges, arguing that silence on that
point therefore should be inferred as precluding prosecution. But
some early state constitutions also expressly granted criminal
immunity to the state’s chief executive, so interpreting silence is not
so simple. See Saikrishna Bangalore Prakash, Prosecuting and
Punishing Our Presidents, 100 Tex. L. Rev. 55, 69–70 (2021) (citing
1776 Virginia and Delaware constitutions). Any limited, indirect
historical clues must be weighed against the compelling textual,
structural and historical evidence that the Founders did not intend the
Impeachment Judgment Clause to bar the criminal prosecution of an
official who was impeached and acquitted (or not impeached at all).
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unless the Congress first impeached and convicted them. No
court has previously imposed such an irrational “impeachment
first” constraint on the criminal prosecution of federal officials.
See, e.g., Isaacs, 493 F.2d at 1144 (“[W]e are convinced that a
federal judge is subject to indictment and trial before
impeachment . . . .”).12 Even if there is an atextual basis for
treating Presidents differently from subordinate government
officials, as former President Trump suggests, his proposed
interpretation still would leave a President free to commit all
manner of crimes with impunity, so long as he is not impeached
and convicted. 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 All of
12
Indeed, history reveals examples of prosecutions preceding
impeachments. See Nixon v. United States, 506 U.S. 224, 226–27
(1993) (defendant judge criminally prosecuted and then impeached);
Hastings v. United States Senate, 716 F. Supp. 38, 41 (D.D.C. 1989)
(same); Amenability of the President, Vice President and other Civil
Officers to Federal Criminal Prosecution While in Office, Op.
O.L.C. 4 (1973) (observing that, as of 1973, only 12 impeachments
had occurred, but “presumably scores, if not hundreds, of officers of
the United States have been subject to criminal proceedings for
offenses for which they could have been impeached”).
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.
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this leads us to conclude that, under the best reading of the
Impeachment Judgment Clause, a former President may be
criminally prosecuted in federal court, without any requirement
that he first be impeached and convicted for the same
conduct.14
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.
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House of Representatives for the same or closely related
conduct but acquitted by the Senate. We disagree.
52
A. IMPEACHMENT IS NOT “CRIMINAL”
53
U.S. CONST. art. I, § 3, cl. 7. — are intended to hold officials
politically accountable, while leaving criminal accountability
to the Judicial Branch.
54
Criminal prosecutions, by contrast, are aimed at
“penaliz[ing] individuals for their criminal misdeeds . . . by
taking away their life, liberty, or property.” OLC Double
Jeopardy Memo at 130; see also Kansas v. Hendricks, 521 U.S.
346, 361–62 (1997) (identifying “retribution [and] deterrence”
as “the two primary objectives of criminal punishment”). The
consequences of a criminal conviction are predicated on a
finding of guilt beyond a reasonable doubt, United States v.
Gaudin, 515 U.S. 506, 510 (1995); and such consequences can
be severe, including asset forfeiture, incarceration and even
death, see, e.g., 18 U.S.C. §§ 982, 3581, 3591. Criminal
prosecutions are overseen by the judiciary, which enforces
stringent procedural protections that reflect the gravity of the
potential ramifications for the defendant. See Nixon, 418 U.S.
at 707 (describing “the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions”). The
Double Jeopardy Clause is one such procedural protection,
ensuring that a criminal defendant is not forced to face
prosecution twice for the same offense.
15
When determining whether a punishment labeled “civil” by
the Congress is criminal for double-jeopardy purposes, courts apply
a multi-factored test. See Kennedy v. Mendoza-Martinez, 372 U.S.
144, 168–69 (1963). Because former President Trump does not
contend impeachment threatens criminal punishment, and because
we think the political nature of impeachment makes that clear, we
need not address those factors. Cf. OLC Double Jeopardy Memo at
139–48 (concluding, under the Mendoza-Martinez test, that removal
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He does not seriously contend otherwise; and he does not
explain why he believes that impeachment can implicate
“double jeopardy principles” when it does not involve criminal
punishment.
B. BLOCKBURGER TEST
56
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.
* * *
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We have balanced former President Trump’s asserted
interests in executive immunity against the vital public interests
that favor allowing this prosecution to proceed. We conclude
that “[c]oncerns of public policy, especially as illuminated by
our history and the structure of our government” compel the
rejection of his claim of immunity in this case. See Fitzgerald,
457 U.S. at 747–48. We also have considered his contention
that he is entitled to categorical immunity from criminal
liability for any assertedly “official” action that he took as
President — a contention that is unsupported by precedent,
history or the text and structure of the Constitution. Finally,
we are unpersuaded by his argument that this prosecution is
barred by “double jeopardy principles.” Accordingly, the order
of the district court is AFFIRMED.16
So ordered.
16
Amici former Attorney General Edwin Meese III and others
argue that the appointment of Special Counsel Smith is invalid
because (1) no statute authorizes the position Smith occupies and (2)
the Special Counsel is a principal officer who must be nominated by
the President and confirmed by the Senate. See U.S. CONST. art. II,
§ 2, cl. 2 (Appointments Clause). On appeal from a collateral order,
we generally lack jurisdiction to consider issues that do not
independently satisfy the collateral order doctrine unless we can
exercise pendent jurisdiction over the issue. See Abney, 431 U.S. at
663; Azima v. RAK Inv. Auth., 926 F.3d 870, 874 (D.C. Cir. 2019).
Because the Appointments Clause issue was neither presented to nor
decided by the district court, there is no order on the issue that could
even arguably constitute a collateral order for us to review.
Additionally, the exercise of pendent jurisdiction would be improper
here, assuming without deciding that pendent jurisdiction is ever
available in criminal appeals. See Abney, 431 U.S. at 663; Gilda
Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir.
1996).