A federal appeals court ruled Tuesday that former President Donald Trump can face criminal charges, setting up a high-stakes Supreme Court appeal over whether he may face trial before the November election.
Tuesday’s unanimous opinion from a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit rejected Trump’s argument that he was immune to charges stemming from his effort to overturn the 2020 election.
The opinion agreed with a lower court judge who found that a former president is not immune to all criminal charges for actions taken while in office.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
In a separate order on Tuesday, the D.C. Circuit gave Trump until Feb. 12 to appeal to the Supreme Court.
Trump campaign spokesman Steven Cheung issued a statement that criticized the decision and said Trump would appeal to the Supreme Court, claiming the case “violates the Constitution and threatens the bedrock of our Republic.”
“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!” Cheung said.
Trump had originally been scheduled to face trial starting on March 4, but District Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia has officially delayed the trial while Trump’s appeal on this issue is pending.
Trump has made the immunity claims one of his primary defenses in the lead up to the trial, and his attorney indicated during oral arguments that he would likely appeal the case to the Supreme Court.
Chutkan rejected Trump’s immunity claims in a ruling last year as part of the federal case alleging that Trump committed crimes as part of a broad-ranging effort to overturn the 2020 election.
Tuesday’s opinion also rejected Trump’s claim that his acquittal in a February 2021 impeachment trial should immunize him from the charges. The judges wrote that Trump’s argument “runs counter to the text, structure and purpose of the Impeachment Judgment Clause.”
The Constitution does not require a Senate conviction for a president to face criminal charges, the judges wrote, and Trump’s acquittal does not fall under double jeopardy principles that would prevent a trial on the indictment unveiled last year.
“The consequences imposed by an impeachment conviction — removal from office and disqualification from future service are intended to hold officials politically accountable, while leaving criminal accountability to the Judicial Branch,” the opinion states.
The indictment alleges that Trump tried to stop vote counting in multiple states, arranged for several slates of false electors and ultimately encouraged then-Vice President Mike Pence to throw out the Electoral College votes of states Trump lost on Jan. 6, 2021.
Trump has argued for presidential immunity in multiple cases so far, including federal civil suits seeking damages from the Jan. 6, 2021, attack on the Capitol and in a Georgia state case alleging that Trump committed crimes while attempting to overturn his 2020 loss in the state.
In a filing last month, Trump indicated he may appeal to the Supreme Court a D.C. Circuit decision from December that found no presidential civil immunity.
Tuesday’s opinion only covers presidential immunity from federal criminal charges while in office, which is separate from legal issues surrounding a state criminal case against Trump in Georgia related to the 2020 election.
A federal criminal case against Trump in Florida and a state criminal case against Trump in New York cover periods when Trump was not in office.
Tuesday’s case is one of three surrounding the charges Trump faces in Washington that could end up before the Supreme Court this term. That includes Trump’s challenge to a gag order that limits his ability to disparage witnesses in the case and a challenge by another defendant of a statute that was also used against Trump.
The Supreme Court already has a calendar with multiple cases involving Trump, abortion and gun rights on its docket.