Feb 7, 2024

Appeals court says Trump is not immune.

Appeals court says Trump is not immune.
Photo by History in HD / Unsplash

Plus, can we make the "perfect" president?

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 11 minutes.

An appeals court rules on the question of Trump's immunity. Plus, Tangle Live goes live, and a new YouTube video on the perfect president.

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Quick hits.

  1. The House rejected the impeachment of Homeland Security Secretary Alejandro Mayorkas in a 216-214 vote, with four Republicans joining all Democrats in opposition. (The vote) Separately, a vote to provide foreign aid to Israel separate from Ukraine or border security also failed. (The vote
  2. A Michigan mother was found guilty of involuntary manslaughter in connection with her son's mass shooting at a high school. She is the first parent to be held criminally responsible for their child's mass attack. The shooter's father faces trial on similar charges next month. (The trial
  3. Nikki Haley was outvoted by "none of these candidates" in Nevada's Republican primary, and former President Trump is expected to win the Nevada caucuses on Friday, which determines who gets all the delegates. The state is holding a primary and a caucus due to a conflict between members of the state party. (The results)
  4. Tucker Carlson said he is in Moscow to interview Russian President Vladimir Putin, and the Kremlin confirmed that their interview had taken place. (The interview)
  5. RNC Chairwoman Ronna McDaniel is expected to resign after the South Carolina primary. She has been facing criticism from party leaders, including former President Donald Trump, after a poor fundraising year. (The resignation)

Today's topic.

Trump's immunity. On Tuesday, the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected former President Donald Trump's claim that he is immune to criminal charges of trying to undermine the 2020 election. The panel, composed of two Democratic appointees and one Republican appointee, said that presidential privileges don’t shield Trump from prosecution for federal crimes that apply to every American citizen.

“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 said. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

Jack Smith, the special counsel leading the prosecution, had previously attempted to fast-track this case to the Supreme Court. Now, Trump is expected to make his own appeal to the high court. Before the circuit court’s ruling, Trump's trial — initially scheduled for March 4 — was postponed indefinitely by Tanya S. Chutkan, who is overseeing the case. In its ruling, the panel said the case will remain suspended if Trump appeals his decision to the Supreme Court by February 12, but if the high court declines to hear the case, it will be sent back to the trial judge.

If the Supreme Court takes it up, it could issue its own ruling about suspending the trial or attempt to rapidly hear and rule on the case. The speed with which the appeals court heard the dispute, and the unanimous ruling it gave, increase the likelihood that Trump’s federal election interference trial is heard this year.

In a response to the ruling, Trump said on Truth Social, "A President of the United States must have Full Immunity in order to properly function and do what has to be done for the good of our Country. A Nation-destroying ruling like this cannot be allowed to stand."

Trump is facing four separate criminal indictments, though he has capitalized on the charges by casting himself as the subject of politicized prosecutions, helping him dominate the Republican primaries. Previously, we covered arguments about his immunity here and here.

Today, we're going to take a look at some arguments about this ruling from the right and left, then my take.


What the right is saying.

  • The right mostly thinks the circuit court was correct to reject Trump’s claim of absolute immunity but suggests the ruling paints with too broad a brush. 
  • Some say the most pressing question is now whether the Supreme Court acts quickly to move the case along.
  • Others say the ruling is a reminder that Trump’s legal problems continue to undermine an otherwise strong reelection bid. 

The Wall Street Journal editorial board asked “is the Presidency at risk of being harried by partisan prosecutors?”

“The D.C. Circuit’s three-judge panel makes short work of bad immunity arguments, such as the claim that Mr. Trump can’t be criminally indicted because he was already impeached by the House and acquitted by the Senate. This isn’t double jeopardy. It’s legal sophistry. Yet the court also makes too-short work of better arguments,” the board wrote. “If the President could be hobbled by civil suits over official actions, where is the concern that he might be paralyzed by the thought of partisan indictments the moment he leaves office?”

“Had the D.C. Circuit ruled against Mr. Trump on narrower grounds—e.g., that his post-election actions were electioneering, and not part of his official duties—the Supreme Court would have found it easier to turn down a Trump appeal. But now that would mean giving three lower-court judges the final say with a ruling that would seem to permit a victorious Mr. Trump to appoint an Attorney General who would try to prosecute Mr. Biden,” the board said. “As is often the case with Mr. Trump, he and his opponents leave everyone else with only bad choices.”

On Fox News, Jonathan Turley explained why Trump’s appeals process “grows more complicated as the 2024 election nears.”

“What former President Trump was advancing was a sweeping and unprecedented claim of immunity, and it's not surprising that this panel rejected it. The interesting thing about this opinion is that they cite the impeachment and quote from it as saying that the president sought to incite this effort to overturn the election. And that's going to go forward. The most practical impact of this appeal was indeed the delay that it caused. It was very important for the Trump team to try to push this trial back,” Turley said.

“The interesting dynamic about this case is that Jack Smith is telling every court it's absolutely urgent that we move this trial forward. And he made it clear that he wants this president tried and convicted before the election. The Supreme Court clearly didn't share that urgency. It refused to do that. And so it's not clear that they're going to feel even greater urgency now,” Turley said. “The outcome is not surprising for many of us, but what remains unknown is how this will change the schedule and dynamic of the case.”

In The New York Post, Isaac Schorr wrote “if Trump is convicted, an election win evaporates for Republicans.”

“An NBC poll released over the weekend suggests Trump boasts a 5-point national lead over Biden. But there’s a fist concealed by the velvet glove of this topline result. If Trump is convicted of a felony this year, his lead would turn into a 2-point deficit. The former president is staring down the barrel of four separate trials after the DC Circuit Court of Appeals struck down his outlandish claim to immunity Tuesday morning, so such a conviction is a distinct possibility,” Schorr said. 

“The media will cover it ceaselessly, to the exclusion of the issues Republicans hope the election hinges on. Some voters will consider this unfair, the trials politically motivated, and exactly the scenario for which Democrats have pushed. Nevertheless, it is the reality. The result will be a freefall in the polls for not just Trump but the Republicans up and down the ballot who feel compelled to march in lockstep with him,” Schorr wrote. “Nominating Trump risks limiting the upside of and potentially even forfeiting this key advantage Republicans have over Biden.”


What the left is saying.

  • The left supports the circuit court’s ruling but is concerned about whether the Supreme Court will take up the case.
  • Some say the court should either decline to hear the case or quickly affirm the circuit court’s decision.
  • Others worry that Trump’s strategy of delaying his trial past the election may succeed. 

The Washington Post editorial board said “the Supreme Court should say ‘no’ to Trump’s immunity case, quick.” 

“The circuit judges have ably dismantled Mr. Trump’s arguments, which were unconvincing to begin with,” the board wrote. “In 57 pages, the judges lay out the implausibility of the notion that, as they put it, a president ‘has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.’ Indeed, they explain, the president alone has the constitutional duty to faithfully execute the laws. How could the president alone also have carte blanche to violate those same laws?”

“The Supreme Court should also decline to take up the case because doing so would curb the possibility that Mr. Trump, because of his statuses as a presidential candidate and former president, and because of his determination to use every pretext for delay, might dodge a trial until after the next presidential election,” the board added. The court “has an opportunity to prove it is neither pro-Trump nor anti-Trump, and that it is willing neither to abrogate its responsibilities nor to stretch its powers to achieve political ends some on the bench might find desirable.”

In Vox, Ian Millhiser wrote “the Supreme Court is about to decide whether to sabotage Trump’s election theft trial.”

“It’s unlikely that either Trump or his lawyers actually thought the courts would rule that sitting presidents have a right to commit crimes. Instead, Trump’s legal strategy is to delay his criminal trials as much as possible… The most important question looming over Trump’s election theft case is what the Supreme Court does next,” Millhiser said. “The justices had their shot to hear this case, and they turned it down. If the Supreme Court does want to put this case back on track, it could do so in two ways.

“The most straightforward way would be to immediately deny Trump’s request to hear the case, and to delay the DC Circuit’s mandate past next Monday. Alternatively, the Court could issue a rare order known as a ‘summary affirmance,’ which would mean that the justices would affirm the DC Circuit’s decision without waiting for briefing or oral argument,” Millhiser wrote. “Should the Court go the other route, however, and decide that it needs to review this case, that would be an enormous gift to Trump — one that could potentially lead to him getting off scot-free without ever being tried for his attempt to steal an election.”

In CNN, Michael Conway suggested “Trump’s immunity defeat isn’t the setback it seems to be.”

“It would be wrong to mistake the decision as a clear-cut victory for efforts to try Trump before Election Day. In fact, the timing of the ruling only increases the likelihood that Trump’s strategy of delaying the outcome of this criminal trial beyond November will succeed,” Conway said. “By ducking an immediate ruling on Trump’s sketchy immunity claim, as well as his shaky double jeopardy defenses, the high court has provided detours that will make it hard to complete Trump’s criminal trial in DC by Election Day and give voters clarity on his actions before they enter the voting booth.”

“Following Trump’s appellate loss, his lawyers can ask the three-judge panel to rehear the appeal or to have their ruling reviewed by all authorized judges in that court — known as a rehearing en banc. While these longshot tactics have scant prospect of overturning the immunity ruling, they will engender additional delay,” Conway added. “Even if Chutkan were to begin a trial during the final two months of the election campaign, both early voters and Election Day voters would be making their choice without knowing if Trump has been found guilty or not guilty of the January 6 criminal charges.”


My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. Write in by replying to this email, or leave a comment.

  • I'm glad the court ruled clearly and unanimously.
  • There are a few pending questions SCOTUS might want to address, but whatever they do, they should do it quickly.
  • In these divided times, Americans of all stripes should be able to unite around the idea no president is immune from criminal law.

My position remains unchanged.

The D.C. Circuit Court of Appeals was right to thoroughly dismantle the argument that a president has absolute immunity, and the Supreme Court should act quickly to either take the case up, turn it down, or affirm the appeals court ruling.

I want to be clear about a few things here: First, the weakest legal arguments from Trump's team have now been put to bed. The idea that a president cannot be criminally indicted because he was impeached by the House and acquitted by the Senate was always patently absurd — and I don't know anyone who could think earnestly about that question and come to any other conclusion. If you feel yourself drawn to Trump's argument, just imagine the same argument coming from President Biden and then see how you feel.

The appeals court goes even further, noting that any immunity a president has while in office evaporates when they become a citizen. And it points out, rightly, that by the time the Senate acquitted Trump he was no longer in office. This was actually the cited reason from many Senate Republicans for acquitting him (that he wasn’t president, so there was no president to impeach). The obvious point is that if you were to accept the legal argument from Trump’s team, a president could commit a crime, then resign or leave office (as Trump did) before any impeachment proceedings were completed, and then be immune from impeachment, and thus immune from further criminal charges.

That being said, the only piece of commentary about this ruling that actually made me think came from The Wall Street Journal editorial board (under “What the right is saying”), which essentially said the court may have slightly overstepped. The board argued that the Supreme Court has already ruled in a past case that a president has absolute immunity from civil liability for official acts, and the appeals court should have engaged the question of whether the charges Trump faced are tied to official acts or not. It didn't, which means there is an open question the Supreme Court might want to address.

Part of the Wall Street Journal editorial board's point is that this could open the door to a slew of post-presidency indictments. As the appeals court did in their ruling, I find this pretty unlikely, but I don't think it can be dismissed out of hand. It's possible this question — what can of worms we’re opening and how the law should limit legal vulnerability for presidents so they can do their job — is worth the Supreme Court taking up. That being said, the board also glosses over the fact Trump isn’t facing civil charges here — he is facing federal criminal indictments. No court, including the Supreme Court, has ever said a president is immune from those charges, because no former president has ever faced charges like these.

Again, it's worth thinking about what Trump is actually arguing. You don't have to read dense legalese from the appeals court to get it, just look at what he is saying publicly (emphasis mine): "A President of the United States must have Full Immunity in order to properly function and do what has to be done for the good of our Country," he wrote on Truth Social. "A Nation-destroying ruling like this cannot be allowed to stand."

When Democratic strategists talk about their election prospects and how the closer we get to the election the more attention Trump will get and the less voters will like him, these kinds of public statements are a big reason why. A presidential candidate arguing that his being held accountable would "destroy" our nation and that all presidents should get "full immunity" should be frightening to any rational American. Again: No president, not Trump or Biden or Obama or Honest Abe Lincoln, should ever have "full immunity" for anything they do. To quote the appeals court directly:

“Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.” That’s the headline statement, and I think it is exactly right.

What happens now? Frankly, I'm unsure. As observers on the left and right agree, I don't think Trump's legal team ever thought this was a winning argument. I think their strategy is to try to delay any trial until after election day. Given the novelty of this situation, I have no position yet on whether Trump is or will be found guilty of some of the things he's been charged with — as the appeals court said, Trump’s guilt is far from assured, and that’s precisely why we need a trial. I hope voters get one before election day, and I hope the Supreme Court makes whatever decision it's going to make expeditiously to help ensure that happens.

For now, I'm glad to see an affirmation of the idea that no president is above the law. As American citizens, it's a simple standard we should all be able to support.

Disagree? That's okay. My opinion is just one of many. Write in and let us know why, and we'll consider publishing your feedback.


The perfect president.

What would a perfect president look like? The question is, in some ways, impossible to answer. But what would the most electable president look like? We took a look at public polling and presidential history, then tried to build the most electable president we could. What would their policies be? How would they act? How old would they be? What would be their name? Check out what we came up with our latest YouTube video:


Your questions, answered. 

Q: Is there anything stopping Trump from running again in 2028 if he loses in 2024? Trump will be 4 years older, but there is no clear candidate from the Democrats and it could potentially be a fairly weak candidate.

— Derek from Dallas-Fort Worth, Texas

Tangle: I guess we’ve got a Trump-heavy newsletter today.

If Trump loses again in 2024, there is nothing stopping him from running again in 2028. At least not right now. Remember, Trump is currently fighting felony charges in four separate criminal cases, and while every day that goes by without a plea is one day closer to maintaining his eligibility in the 2024 election, it is also another day without an exoneration, thereby hurting his chances of eligibility for 2028. If I had to guess, I wouldn’t expect Trump to either receive a conviction or accept a plea deal that bars him from running again, but that would be the only thing that would legally prevent him from doing so.

Whether or not Republicans would want him at the top of the ticket in 2028, where (by definition) he’d be a back-to-back general election loser, is another thing. 

On one hand, it’s hard to imagine him ever losing any of his base, which is now the majority of the Republican Party. On the other hand, as conservative columnist Henry Olsen recently came on to our podcast to remind me, even a month is an eternity in politics. We can’t imagine how much will change between now and 2028.

That also applies to your second point about the Democrats not having any clear candidates to run in 2028. Right now, there are 23 Democrats in governorships, 213 in the House of Representatives, and 48 in the Senate. Even if you’re a very informed voter, I bet you can’t name more than 50. Since 2016, we’ve seen obscure senators (like Bernie Sanders), unknown mayors (like Pete Buttigieg), and Congressional freshmen (like Alexandria Ocasio-Cortez) all become household names on the national political landscape. That’s not to say that Mayor Pete or AOC will be the 2028 nominee for president, just that you never know where the next big name in politics will come from.

It’s really tough to make good political predictions more than three months in advance. For anything more than a year out, it’s almost impossible. If you’re looking out to 2028 and wondering what to expect, my advice is to expect the unexpected.

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.


Under the radar.

The carmaker Toyota is trumpeting its soaring stock and sales success as proof that its model of leaning into hybrid vehicles — rather than fully electric — is meant for this moment. The company said it expects to notch $30 billion in annual profit when its fiscal year closes in March, a new record for the storied Japanese company. Consumers have been reluctant to go fully electric due to concerns about access to charging stations, affordability, and range. Toyota has instead leaned into producing hybrid vehicles, giving consumers an economically and environmentally conscious choice. Other carmakers, like General Motors, are now reconsidering their rush into full electric vehicles. The Wall Street Journal has the story (paywall).


Numbers.

  • 64%. The percentage of U.S. voters who say Trump should not receive immunity from criminal prosecution for actions he took while president, according to a PBS NewsHour/NPR/Marist poll released today. 
  • 65%. The percentage of independent voters who say Trump should not receive immunity from prosecution. 
  • 68%. The percentage of Republicans who say Trump should receive immunity from prosecution. 
  • 48%. The percentage of Americans who say it’s “essential” that a verdict is reached in Trump’s 2020 election interference case before the 2024 presidential election, according to a recent poll from CNN. 
  • 11%. The percentage of Americans who say that a trial on the charges should be postponed until after the 2024 election. 
  • 47%-42%. Trump’s polling lead over President Biden in a hypothetical general-election matchup, according to a recent NBC News poll. 
  • 45%-43%. Biden’s polling lead over Trump if Trump were to be found guilty and convicted of a felony this year, according to the same NBC News poll. 

The extras. 

  • One year ago today we covered Ilhan Omar’s expulsion from the Foreign Affairs Committee.
  • The most clicked link in yesterday’s newsletter was CNN’s lineup changes.
  • Stamp it: 827 readers responded to our survey asking about the foreign and border security that recently passed the Senate with 51% saying they mostly support the bill. 25% strongly support the bill, 4% neither support nor oppose it, 8% mostly oppose it, and 10% strongly oppose it. 1% were unsure or had no opinion.
  • Nothing to do with politics: Breaking down the U.S.’s top podcasts.
  • Take the poll. What do you think of the court’s ruling that former President Donald Trump is not immune from prosecution in his federal election interference case? Let us know!

Have a nice day. 

In more stories of kindness from Tangle readers, Jewish American Rebekkah Paisner wrote in to tell us about Visions of Peace, the interfaith nights she hosts with her friend Sumayyah Bilal, a Muslim American. In a Presbyterian Church in Baltimore, faith leaders for local Muslim, Jewish, and Christian communities help facilitate a dialogue between all people on the conflict between Palestine and Israel that promotes understanding and healing. “I think people need a space where they can be heard… And that just fosters so much connection between people and it makes them feel less alienated, less isolated,” Bilal said. Paisner and Bilal have already hosted two Visions of Peace nights, and are planning for more. The Baltimore Sun has the story.


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Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.