A federal appeals panel has rejected former President Donald Trump's claims that he is immune from prosecution, meaning that he can face trial on charges that he plotted to overturn the results of the 2020 election. Trump's attorneys have until Monday to file an appeal with the U.S. Supreme Court.

Below is a full transcript of the ruling handed down by the U.S. Court of Appeals, District of Columbia.

 United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued January 9, 2024 Decided February 6, 2024

No. 23-3228

UNITED STATES OF AMERICA,

APPELLEE

v.

DONALD J. TRUMP,

APPELLANT

Appeal from the United States District Court

for the District of Columbia

(No. 1:23-cr-00257-1)

  1. John Sauer argued the cause for appellant. With him

on the briefs were John F. Lauro, Gregory M. Singer, Emil

Bove, William O. Scharf, and Michael E. Talent.

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.

James I. Pearce, Assistant Special Counsel, U.S.

Department of Justice, argued the cause for appellee. With him

on the brief were J. P. Cooney, Deputy Special Counsel,

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.

Richard D. Bernstein was on the brief for amici curiae

Former Officials in Five Republican Administrations, et al. in

support of appellee.

Fred Wertheimer, Matthew A. Seligman, Seth P. Waxman,

Colleen M. Campbell, Nathaniel W. Reisinger, David M.

Levine, and Kyle T. Edwards were on the brief for amici curiae

Former Government Officials and Constitutional Lawyers in

support of appellee.

  1. Stanton Jones and Andrew T. Tutt were on the brief for

amicus curiae American Oversight in support of dismissal for

lack of jurisdiction.

Gene C. Schaerr and Justin A. Miller were on the brief for

amici curiae Former Attorney General Edwin Meese III and

Law Professors Steven G. Calabresi and Gary S. Lawson in

support of neither party.

Before: HENDERSON, CHILDS and PAN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

PER CURIAM: Donald J. Trump was elected the 45th

President of the United States on November 8, 2016. He was

sworn into office at noon on January 20, 2017, and served until

his term expired at noon on January 20, 2021. At that moment,

President Trump became former President Trump and his

successor, Joseph R. Biden, became President and began his

own four-year term. U.S. CONST. art. II, § 1. Although this

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.

Since then, hundreds of people who breached the Capitol

on January 6, 2021, have been prosecuted and imprisoned.

And on August 1, 2023, in Washington, D.C., former President

Trump was charged in a four-count Indictment as a result of his

actions challenging the election results and interfering with the

sequence set forth in the Constitution for the transfer of power

from one President to the next. Former President Trump

moved to dismiss the Indictment and the district court denied

his motion. Today, we affirm the denial. For the purpose of

this criminal case, former President Trump has become citizen

Trump, with all of the defenses of any other criminal defendant.

But any executive immunity that may have protected him while

he served as President no longer protects him against this

prosecution.

  1. BACKGROUND

Former President Trump did not concede the 2020 election

and, in the ensuing months, he and his supporters made

numerous attempts to challenge the results. Many of their

attempts were allegedly criminal.1

 A District of Columbia

federal grand jury indicted former President Trump on four

criminal counts arising from the steps he allegedly took to

change the outcome of the election: (1) conspiracy to defraud

the United States by overturning the election results, in

violation of 18 U.S.C. § 371; (2) conspiracy to obstruct an

official proceeding — i.e., the Congress’s certification of the

electoral vote — in violation of 18 U.S.C. § 1512(k); (3)

obstruction of, and attempt to obstruct, the certification of the

electoral vote, in violation of 18 U.S.C. §§ 1512(c)(2), 2; and

(4) conspiracy against the rights of one or more persons to vote

and to have their votes counted, in violation of 18 U.S.C. § 241.

At this stage of the prosecution, we assume that the allegations

set forth in the Indictment are true. United States v. Ballestas,

795 F.3d 138, 149 (D.C. Cir. 2015). We emphasize that

whether the Indictment’s allegations are supported by evidence

sufficient to sustain convictions must be determined at a later

stage of the prosecution.

The Indictment alleges that former President Trump

understood that he had lost the election and that the election

results were legitimate but that he nevertheless was

“determined to remain in power.” Indictment ¶ 2. He then

conspired with others to cast doubt on the election’s outcome

and contrived to have himself declared the winner. The

1 Former President Trump’s campaign and his supporters also

unsuccessfully challenged the election results in several state and

federal courts.

Indictment charges that he and his co-conspirators allegedly

advanced their goal through five primary means:

First, they “used knowingly false claims of election fraud”

to attempt to persuade state legislators and election officials to

change each state’s electoral votes in former President Trump’s

favor. Indictment ¶ 10(a). For example, he and his allies

falsely declared “that more than ten thousand dead voters had

voted in Georgia”; “that there had been 205,000 more votes

than voters in Pennsylvania”; “that more than 30,000 noncitizens had voted in Arizona”; and “that voting machines .?.?.

had switched votes from [Trump] to Biden.” Id. at ¶?12.

Second, then-President Trump and his co-conspirators

“organized fraudulent slates of electors in seven targeted

states . . . attempting to mimic the procedures that the

legitimate electors were supposed to follow.” Indictment

¶?10(b). They “then caused these fraudulent electors to

transmit their false certificates to the Vice President and other

government officials to be counted at the certification

proceeding on January 6.” Id.

Third, then-President Trump and his co-conspirators

pressed officials at the Department of Justice “to conduct sham

election crime investigations and to send a letter to the targeted

states that falsely claimed that the Justice Department had

identified significant concerns that may have impacted the

election outcome.” Indictment ¶?10(c).

Fourth, then-President Trump and his co-conspirators

attempted to convince then-Vice President Mike Pence to “use

his ceremonial role at the January 6 certification proceeding to

fraudulently alter the election results.” Indictment

¶?10(d). When the Vice President rebuffed them, he stirred his

base of supporters to increase pressure on the Vice President.

See id. at ¶¶ 10(d), 96, 100. Ultimately, on the morning of

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).

Fifth, and finally, from the January 6 rally, thousands of

his supporters — “including individuals who had traveled to

Washington and to the Capitol at [his] direction” — swarmed

the United States Capitol, causing “violence and chaos” that

required the Congress to temporarily halt the electioncertification proceeding. Indictment ¶¶ 107, 119, 121. At that

point, he and his co-conspirators “exploited the disruption by

redoubling efforts to levy false claims of election fraud and

convince Members of Congress to further delay the

certification.” Id. at ¶ 10(e).

Then-President Trump’s efforts to overturn the election

results were unsuccessful and the Congress certified the

Electoral College vote in favor of President-Elect Biden.

Indictment ¶ 123. On January 11, 2021, nine days before

President-Elect Biden’s inauguration, the House of

Representatives adopted an impeachment resolution charging

then-President Trump with “Incitement of Insurrection.” H.R.

Res. 24, 117th Cong. (2021). The single article of

impeachment alleged that he had violated “his constitutional

oath faithfully to execute the office of President of the United

States . . . [and] his constitutional duty to take care that the laws

be faithfully executed . . . by inciting violence against the

Government of the United States.” Id. at 2. The impeachment

resolution asserted that “President Trump repeatedly issued

false statements asserting that the Presidential election results

were the product of widespread fraud and should not be

accepted by the American people or certified by State or

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.

Importantly, by the time the United States Senate

conducted a trial on the article of impeachment, he had become

former President Trump. At the close of the trial, on February

13, 2021, fifty-seven Senators voted to convict him and fortythree voted to acquit him. See 167 CONG. REC. S733 (daily ed.

Feb. 13, 2021). Because two-thirds of the Senate did not vote

for conviction, he was acquitted on the article of

impeachment. See id.; U.S. CONST. art. I, § 3, cl. 6.

On November 18, 2022, the U.S. Attorney General

appointed John L. Smith as Special Counsel to investigate

“efforts to interfere with the lawful transition of power

following the 2020 presidential election or the certification of

the Electoral College vote.”2

 A Washington, D.C., grand jury

returned the instant four-count Indictment against former

President Trump on August 1, 2023, and on August 28, 2023,

the district court set a trial date of March 4, 2024.

Former President Trump filed four motions to dismiss the

Indictment, relying on: (1) presidential immunity; (2)

constitutional provisions, including the Impeachment

Judgment Clause and principles stemming from the Double

2 Off. of the Att’y Gen., “Appointment of John L. Smith as

Special Counsel,” Order No. 5559-2022 (Nov. 18, 2022).

Jeopardy Clause; (3) statutory grounds; and (4) allegations of

selective and vindictive prosecution.

On December 1, 2023, the district court issued a written

opinion denying the two motions that are based on presidential

immunity and the two constitutional provisions. In relevant

part, the district court rejected Trump’s claim of executive

immunity from criminal prosecution, holding that “[f]ormer

Presidents enjoy no special conditions on their federal criminal

liability.” United States v. Trump, --- F. Supp. 3d ---, 2023 WL

8359833, at *3 (D.D.C. Dec. 1, 2023). It concluded that “[t]he

Constitution’s text, structure, and history do not support” the

existence of such an immunity, id., and that it “would betray

the public interest” to grant a former President “a categorical

exemption from criminal liability” for allegedly “attempting to

usurp the reins of government.” Id. at *12. It also held that

“neither traditional double jeopardy principles nor the

Impeachment Judgment Clause provide that a prosecution

following impeachment acquittal violates double jeopardy.”

Id. at *18.3

Former President Trump filed an interlocutory appeal of

the district court’s presidential immunity and double-jeopardy

holdings. On December 13, 2023, we granted the

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.

government’s motion to expedite the appeal, and oral argument

was held on January 9, 2024.

  1. JURISDICTION

Although both parties agree that the Court has jurisdiction

over former President Trump’s appeal, amicus curiae

American Oversight raises a threshold question about our

collateral-order jurisdiction. In every case, “we must assure

ourselves of our jurisdiction.” In re Brewer, 863 F.3d 861, 868

(D.C. Cir. 2017). Under 28 U.S.C. § 1291, which grants us

jurisdiction over “final decisions of the district courts,” id., “we

ordinarily do not have jurisdiction to hear a defendant’s appeal

in a criminal case prior to conviction and sentencing,” United

States v. Andrews, 146 F.3d 933, 936 (D.C. Cir. 1998). The

collateral-order doctrine, however, treats as final and thus

allows us to exercise appellate jurisdiction over “a small class

of [interlocutory] decisions that conclusively determine the

disputed question, resolve an important issue completely

separate from the merits of the action, and are effectively

unreviewable on appeal from a final judgment.” Citizens for

Resp. & Ethics in Wash. v. Dep’t of Homeland Sec., 532 F.3d

860, 864 (D.C. Cir. 2008) (cleaned up). The district court’s

denial of former President Trump’s immunity defense

unquestionably satisfies the first two requirements and thus we

focus our analysis on the third: whether the denial of immunity

is effectively unreviewable on appeal from a final judgment.

District court orders rejecting claims of civil immunity are

quintessential examples of collateral orders. See, e.g., Nixon v.

Fitzgerald, 457 U.S. 731, 741–43 (1982) (executive immunity

from civil liability); Blassingame v. Trump, 87 F.4th 1, 12

(D.C. Cir. 2023) (same). But in Midland Asphalt Corp. v.

United States, the Supreme Court counseled that the collateral

order doctrine is interpreted “with the utmost strictness in

criminal cases.” 489 U.S. 794, 799 (1989) (cleaned up).

The Midland Asphalt Court emphasized that criminal

collateral orders that are based on “[a] right not to be tried”

must “rest[] upon an explicit statutory or constitutional

guarantee that trial will not occur” — singling out the Double

Jeopardy Clause and the Speech or Debate Clause. 489 U.S. at

801 (emphasis added). Former President Trump does not raise

a straightforward claim under the Double Jeopardy Clause but

instead relies on the Impeachment Judgment Clause and what

he calls “double jeopardy principles.” Appellant’s Br. 54 n.7.

The double-jeopardy “principle[]” he relies on is a negative

implication drawn from the Impeachment Judgment Clause.

See id. at 8, 12, 46–47. Thus, he does not invoke our

jurisdiction based on the explicit grant of immunity found in

the Double Jeopardy Clause.

Nevertheless, we can exercise jurisdiction for two reasons.

First, Midland Asphalt is distinguishable and does not require

immunity to derive from an explicit textual source. Second,

the theories of immunity former President Trump asserts are

sufficient to satisfy Midland Asphalt under Circuit precedent.

  1. DISTINGUISHING MIDLAND ASPHALT

Midland Asphalt dealt with the third prong of the

collateral-order test in the context of criminal defendants who

argued they were entitled to immediately appeal the denial of

their motion to dismiss an indictment because the government

had violated Federal Rule of Criminal Procedure 6(e)(2)’s

requirement of grand jury secrecy. 489 U.S. at 796. The

Supreme Court held that an order is “effectively unreviewable”

on appeal “only where the order at issue involves ‘an asserted

right the legal and practical value of which would be destroyed

if it were not vindicated before trial.’” Id. at 799 (quoting

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.”)).

The reason the defendants’ argument failed, the Midland

Asphalt Court held, was that it overlooked the “crucial

distinction between a right not to be tried and a right whose

remedy requires the dismissal of charges.” 489 U.S. at 801

(quotation omitted). “A right not to be tried in the sense

relevant to the [collateral-order doctrine] rests upon an explicit

statutory or constitutional guarantee that trial will not occur —

as in the Double Jeopardy Clause . . . or the Speech or Debate

Clause.” Id. By contrast, Rule 6(e)(2) did not “give[] rise to a

right not to stand trial” but instead merely created a right to

secret grand jury proceedings, the violation of which could be

remedied through the indictment’s dismissal. Id. at 802.

American Oversight’s argument hinges on the Court’s use

of the adjective “explicit” — a word that appears only once in

the Midland Asphalt opinion. The Court has repeatedly (and

recently) cautioned against “read[ing] too much into too little,”

reminding us that “‘[t]he language of an opinion is not always

to be parsed as though we were dealing with language of a

statute.’” Nat’l Pork Producers Council v. Ross, 598 U.S. 356,

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.”).

The Supreme Court itself has hinted, although not squarely

held, that Midland Asphalt’s language should not be read

literally. In Digital Equipment, the Court quoted the relevant

sentence from Midland Asphalt and characterized it as a

“suggest[ion].” Digital Equip. Corp. v. Desktop Direct, Inc.,

511 U.S. 863, 874 (1994) (“Only such an ‘explicit statutory or

constitutional guarantee that trial will not occur,’ we suggested,

could be grounds for an immediate appeal of right under

  • 1291.” (internal citation to Midland Asphalt, 489 U.S. at 801,

omitted)). The Court then weighed the argument that Midland

Asphalt’s comment is dictum because the Court allows

interlocutory review of other implied immunities, including

qualified immunity. Id. at 875 (citing Mitchell v. Forsyth, 472

U.S. 511 (1985)). The Court did not concede the point,

however, as it pointed out that Midland Asphalt is a criminal

case and Mitchell is a civil case, but it allowed that “even if

Mitchell could not be squared fully with the literal words of the

Midland Asphalt sentence . . . that would be only because the

qualified immunity right is inexplicit, not because it lacks a

good pedigree in public law.” Id. It then noted “the insight

that explicitness may not be needed for jurisdiction consistent

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).

There is good reason not to read Midland Asphalt literally

here. Read in context, the Court’s use of “explicit” was simply

to contrast a right against trial and a right that entitles the

defendant to the dismissal of charges. The latter can be

vindicated through appeal after a final judgment, but the former

cannot. The Court was not addressing an issue as to which it

was necessary to distinguish between explicit and implied

rights against trial; instead, it addressed the defendants’

assertion that the violation of the Federal Rules of Criminal

Procedure entitled them to immediate review. See Midland

Asphalt, 489 U.S. at 802 (Rule 6(e) contained “no hint” of a

right against trial). Thus, “explicit” did not perform any

“particular work” within the opinion, see Nat’l Pork

Producers, 598 U.S. at 374, meaning it would be a mistake to

make a doctrinal mountain out of a verbal molehill. See Al

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.

Shimari, 679 F.3d at 246 (Wilkinson, J., dissenting) (calling

Midland Asphalt’s sentence “dictum” and a “lonely line”).

Nor was the question presented in Midland Asphalt

anything like the one before us. Procedural rules are worlds

different from a former President’s asserted immunity from

federal criminal liability. The Supreme Court has repeatedly

emphasized that the President is sui generis. In the civil

context, the Court has held that the denial of the President’s

assertion of absolute immunity is immediately appealable “[i]n

light of the special solicitude due to claims alleging a

threatened breach of essential Presidential prerogatives under

the separation of powers.” Fitzgerald, 457 U.S. at 743. And

in United States v. Nixon, the Court waived the typical

requirement that the President risk contempt before appealing

because it would be “unseemly” to require the President to do

so “merely to trigger the procedural mechanism for review of

the ruling.” 418 U.S. 683, 691–92 (1974). It would be equally

“unseemly” for us to require that former President Trump first

be tried in order to secure review of his immunity claim after

final judgment. When the Court instructs us to read its opinions

“with a careful eye to context,” see Nat’l Pork Producers, 598

U.S. at 374, it authorizes us to consider the “special solicitude”

due a former President, Fitzgerald, 457 U.S. at 743.

One final reason not to overread a single adjective in

Midland Asphalt is that there is no apparent reason to treat an

implicit constitutional immunity from trial differently from an

explicit one for interlocutory review.5

 Midland Asphalt

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

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).

  1. CIRCUIT PRECEDENT

Our Circuit precedent has taken a broad view of Midland

Asphalt, consistently holding that the denial of a right not to

stand trial is immediately appealable if the right is similar or

analogous to one provided in the Constitution. Both of former

President Trump’s asserted sources of immunity — separation

of powers and double jeopardy principles — fit within this

window of appealability. See Appellant’s Br. 2–3 (listing

“Statement of the Issues”).

Our caselaw includes United States v. Rose, a civil case in

which we held that Congressman Rose’s standalone separation

of powers immunity was reviewable under § 1291 because it

served the same function as a claim of Speech or Debate Clause

immunity. 28 F.3d 181 (D.C. Cir. 1994). Congressman Rose

value of the interests that would be lost through rigorous application

of a final judgment requirement.” Digital Equip., 511 U.S. at 878–

  1. But there is no need for courts to make that judgment call

“[w]hen a policy is embodied in a constitutional or statutory

provision,” thus leaving “little room for the judiciary to gainsay its

importance.” Id. at 879 (cleaned up).

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).

We confirmed Rose’s applicability in the criminal context

in United States v. Durenberger, 48 F.3d 1239 (D.C. Cir.

1995). There, former Senator Durenberger sought to dismiss

an indictment, arguing based on separation of powers that the

district court was powerless to decide whether he had violated

the Senate’s rules, a prerequisite of its assessment of the

criminal charges against him. See id. at 1241; U.S. CONST. art.

I, § 5, cl. 2 (“Each House may determine the Rules of its

Proceedings . . . .”). He thus “claim[ed] that, as a former

member of the Senate, he cannot be held to answer criminal

charges when his liability depends on judicial usurpation of the

Senate’s exclusive right to formulate its internal rules.”

Durenberger, 48 F.3d at 1242. We held that this “colorable”

argument was sufficient to confer appellate jurisdiction under

Rose. Id. Notably, the constitutional text invoked in

Durenberger can hardly be said to create an “explicit” right not

to stand trial. As we explained in a subsequent case, both Rose

and Durenberger rest on the rationale that the “separation-ofpowers doctrine conferred . . . an analogous and comparable

privilege” to the Speech or Debate Clause. United States v.

Cisneros, 169 F.3d 763, 770 (D.C. Cir. 1999).

Following the Supreme Court’s lead, see Abney v. United

States, 431 U.S. 651, 662 (1977) (denial of motion to dismiss

indictment on double jeopardy grounds is immediately

appealable), we have also allowed interlocutory review by

analogizing to the explicit constitutional immunity in the

Double Jeopardy Clause. In United States v. Trabelsi, we

exercised interlocutory appellate jurisdiction of the defendant’s

invocation of a treaty’s non bis in idem provision, which

“mirror[ed] the Constitution’s prohibition of double jeopardy.”

28 F.4th 1291, 1298 (D.C. Cir. 2022), cert. denied, 143 S. Ct.

345 (2022). The treaty provision’s similarity to the

constitutional guarantee, we held, was enough to bring the

appeal within the scope of Abney.

Former President Trump’s two arguments can be

analogized to explicit constitutional immunities, which is all

that Durenberger and Trabelsi require. His separation of

powers argument does not explicitly draw on the Speech or

Debate Clause but neither did the argument in Durenberger.

The immunity for official acts former President Trump asserts

is “closely akin to a claim of Speech or Debate Clause

immunity,” Cisneros, 169 F.3d at 770, making it immediately

appealable because “there are equivalent reasons for

vindicating [it] in advance of trial,” Rose, 28 F.3d at 186

(quotation omitted). Likewise, the defense argues that the

Impeachment Judgment Clause “incorporates a Double

Jeopardy principle.” Appellant’s Br. 46. We found a similar

line of reasoning convincing in Trabelsi. If a treaty provision

that “mirrors” the Double Jeopardy Clause falls within the

collateral-order doctrine, so does a constitutional clause that

(purportedly) attaches jeopardy to a Senate’s impeachment

acquittal. Both of former President Trump’s arguments are at

least analogous enough to the Speech or Debate Clause or the

Double Jeopardy Clause to fit within our precedent.

Nor will exercising jurisdiction here put us in conflict with

other circuits, as American Oversight suggests. See Am.

Oversight Br. 9. The chief cases on which American Oversight

relies are readily distinguishable because in each the asserted

right against trial was not grounded solely in either the

Constitution or a statute. See United States v. Joseph, 26 F.4th

528, 534 (1st Cir. 2022) (a state judge’s immunity depended

“solely on the common law”); United States v. Macchia, 41

F.3d 35, 38 (2d Cir. 1994) (addressing “an alleged agreement

with the United States Attorney” to provide the defendant with

immunity); United States v. Wampler, 624 F.3d 1330, 1337 &

n.3 (10th Cir. 2010) (involving “an executory plea agreement

between a company and the government” that excluded the

defendants).

Accordingly, we conclude that we have jurisdiction to

reach the merits of former President Trump’s appeal.

III. EXECUTIVE IMMUNITY

For all immunity doctrines, “the burden is on the official

claiming immunity to demonstrate his entitlement.” Dennis v.

Sparks, 449 U.S. 24, 29 (1980). Former President Trump

claims absolute immunity from criminal prosecution for all

“official acts” undertaken as President, a category, he contends,

that includes all of the conduct alleged in the Indictment.

The question of whether a former President enjoys

absolute immunity from federal criminal liability is one of first

impression. See Blassingame, 87 F.4th at 5 (noting the

unresolved question of “whether or when a President might be

immune from criminal prosecution”). The Supreme Court has

consistently held that even a sitting President is not immune

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).

Former President Trump’s claimed immunity would have

us extend the framework for Presidential civil immunity to

criminal cases and decide for the first time that a former

President is categorically immune from federal criminal

prosecution for any act conceivably within the outer perimeter

of his executive responsibility. He advances three grounds for

establishing this expansive immunity for former Presidents:

(1) Article III courts lack the power to review the President’s

official acts under the separation of powers doctrine; (2)

functional policy considerations rooted in the separation of

powers require immunity to avoid intruding on Executive

Branch functions; and (3) the Impeachment Judgment Clause

does not permit the criminal prosecution of a former President

in the absence of the Congress impeaching and convicting him.

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.

  1. SEPARATION OF POWERS DOCTRINE

The President of the United States “occupies a unique

position in the constitutional scheme.” Fitzgerald, 457 U.S. at

749; see Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034

(2020) (“The President is the only person who alone composes

a branch of government.”). Under the separation of powers

established in the Constitution, the President is vested with

“executive Power,” U.S. CONST. art. II, § 1, cl.1, which entails

the duty to “take Care that the Laws be faithfully executed,” id.

  • 3, and “supervisory and policy responsibilities of utmost

discretion and sensitivity,” Fitzgerald, 457 U.S. at 750. The

President’s constitutional role exists alongside the Congress’s

duty to make the laws, U.S. CONST. art. I, § 1, and the

Judiciary’s duty to “say what the law is,” Marbury v. Madison,

5 U.S. (1 Cranch) 137, 177 (1803).

“It is settled law that the separation-of-powers doctrine

does not bar every exercise of jurisdiction over the President of

the United States.” Fitzgerald, 457 U.S. at 753–54; see also

Nixon, 418 U.S. at 706 (separation of powers doctrine cannot

“sustain an absolute, unqualified Presidential privilege of

immunity from judicial process under all circumstances”).

Nevertheless, former President Trump argues that the

constitutional structure of separated powers means that

“neither a federal nor a state prosecutor, nor a state or federal

court, may sit in judgment over a President’s official acts,

which are vested in the Presidency alone.” Appellant’s Br. 10.

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.

Former President Trump misreads Marbury and its

progeny. Properly understood, the separation of powers

doctrine may immunize lawful discretionary acts but does not

bar the federal criminal prosecution of a former President for

every official act.

Marbury distinguished between two kinds of official acts:

discretionary and ministerial. As to the first category, Chief

Justice Marshall recognized that “the President is invested with

certain important political powers, in the exercise of which he

is to use his own discretion, and is accountable only to his

country in his political character, and to his own conscience.”

Marbury, 5 U.S. (1 Cranch) at 165–66. When the President or

his appointed officers exercise discretionary authority, “[t]he

subjects are political” and “the decision of the executive is

conclusive.” Id. at 166. Their discretionary acts, therefore,

“can never be examinable by the courts.” Id. “But,” Chief

Justice Marshall continued, “when the legislature proceeds to

impose on that officer other duties; when he is directed

peremptorily to perform certain acts; when the rights of

individuals are dependent on the performance of those acts; he

is so far the officer of the law; is amenable to the laws for his

conduct; and cannot at his discretion sport away the vested

rights of others.” Id. (emphases added). Under these

circumstances, an executive officer acts as a “ministerial

officer . . . compellable to do his duty, and if he refuses, is

liable to indictment.” Id. at 150; see id. at 149–50 (“It is not

consistent with the policy of our political institutions, or the

manners of the citizens of the United States, that any

ministerial officer having public duties to perform, should be

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.

The cases following Marbury confirm that we may review

the President’s actions when he is bound by law, including by

federal criminal statutes. In Little v. Barreme, the Supreme

Court concluded that the President’s order to a subordinate

officer to seize American ships traveling to or from French

ports violated the Nonintercourse Act precisely because the

Congress had acted to constrain the Executive’s discretion. 6

U.S. (2 Cranch) 170, 177–79 (1804). Chief Justice Marshall

observed that the President may have had the discretionary

authority to order the seizure absent legislation but had no

discretion to violate the Act. Id. at 177–78. Similarly, in

Kendall v. United States ex rel. Stokes, the Supreme Court

reviewed the official acts of the postmaster general, the

President’s subordinate officer who derived his authority from

the Executive Branch, because the civil case involved the

violation of a statutory requirement. 37 U.S. 524, 612–13

(1838). To find a statutory violation unreviewable, the Court

held, “would be clothing the President with a power entirely to

control the legislation of congress, and paralyze the

administration of justice.” Id. at 613.

Then, in Mississippi v. Johnson, the Supreme Court

considered whether the State of Mississippi could sue President

Andrew Johnson to enjoin him from enforcing the

Reconstruction Acts, which the State alleged were

unconstitutional. 71 U.S. 475, 497–98 (1866). The Court

concluded that it lacked jurisdiction to issue an injunction,

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.

The Supreme Court exercised its cognizance over

Presidential action to dramatic effect in 1952, when it held that

President Harry Truman’s executive order seizing control of

most of the country’s steel mills exceeded his constitutional

and statutory authority and was therefore invalid. Youngstown

Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587–89 (1952). The

Congress had not legislated to authorize President Truman’s

seizure and in fact had “refused to adopt th[e seizure] method

of settling labor disputes.” Id. at 586. President Truman could

lawfully act only to execute the Congress’s laws or to carry out

his constitutional duties as the Executive; and he lacked

authority from either source to seize the steel mills. Id. at 587–

  1. As Justice Jackson explained, the Court’s holding

invalidating the executive order was proper because “[w]hen

the President takes measures incompatible with the expressed

or implied will of Congress, his power is at its lowest ebb.” Id.

at 637 (Jackson, J., concurring). Based on Youngstown and

Marbury, the Supreme Court in Clinton easily concluded that

“when the President takes official action, the Court has the

authority to determine whether he has acted within the law.”

Clinton, 520 U.S. at 703.

Objection may be made that Marbury and its progeny

exercised jurisdiction only over subordinate officers, not the

President himself. The writ in Marbury was brought against

the Secretary of State; in Little against a commander of a ship

of war; in Kendall against the postmaster general; in

Youngstown against the Secretary of Commerce. But as the

Supreme Court has unequivocally explained:

No man in this country is so high that he is

above the law. No officer of the law may set

that law at defiance with impunity. All the

officers of the government, from the highest to

the lowest, are creatures of the law and are

bound to obey it. It is the only supreme power

in our system of government, and every man

who by accepting office participates in its

functions is only the more strongly bound to

submit to that supremacy, and to observe the

limitations which it imposes upon the exercise

of the authority which it gives.

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).

Further, the Supreme Court has repeatedly affirmed the

judiciary’s power to “direct appropriate process to the

President himself.” Clinton, 520 U.S. at 705. The President

does not enjoy absolute immunity from criminal subpoenas

issued by state and federal prosecutors and may be compelled

by the courts to respond. Burr, 25 F. Cas. at 33–34; Nixon, 418

U.S. at 713–14; Vance, 140 S. Ct. at 2431. We have “200 years

of precedent establishing that Presidents, and their official

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).

The separation of powers doctrine, as expounded in

Marbury and its progeny, necessarily permits the Judiciary to

oversee the federal criminal prosecution of a former President

for his official acts because the fact of the prosecution means

that the former President has allegedly acted in defiance of the

Congress’s laws. Although certain discretionary actions may

be insulated from judicial review, the structure of the

Constitution mandates that the President is “amenable to the

laws for his conduct” and “cannot at his discretion” violate

them. Marbury, 5 U.S. (1 Cranch) at 166. Here, former

President Trump’s actions allegedly violated generally

applicable criminal laws, meaning those acts were not properly

within the scope of his lawful discretion; accordingly, Marbury

and its progeny provide him no structural immunity from the

charges in the Indictment.

Our conclusion that the separation of powers doctrine does

not immunize former Presidents from federal criminal liability

is reinforced by the analogous immunity doctrines for

legislators and judges. Legislators and judges are absolutely

immune from civil suits for any official conduct, and legislators

have an explicit constitutional immunity from criminal

prosecution arising from the Speech or Debate Clause.

Nevertheless, legislators and judges can be criminally

prosecuted under generally applicable laws for their official

acts consistent with the separation of powers doctrine.

Legislators have explicit constitutional immunity from

criminal or civil liability “for what they do or say in legislative

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.

Judges are similarly liable to the criminal laws for their

official acts. A notable example is Ex parte Commonwealth of

Virginia, in which the Supreme Court applied Marbury’s

discretionary/ministerial distinction to affirm the criminal

indictment of a judge based on an official act. 100 U.S. 339

(1879). A county judge was indicted in federal court for

violating a federal statute that prohibited discriminating on the

basis of race in jury selection. Id. at 340, 344. The Supreme

Court began by observing the principle that officers are bound

to follow the law: “We do not perceive how holding an office

under a State, and claiming to act for the State, can relieve the

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:

But if the selection of jurors could be considered

in any case a judicial act, can the act charged

against the petitioner be considered such when

he acted outside of his authority and in direct

violation of the spirit of the State statute? That

statute gave him no authority, when selecting

jurors, from whom a panel might be drawn for

a circuit court, to exclude all colored men

merely because they were colored. Such an

exclusion was not left within the limits of his

discretion. It is idle, therefore, to say that the

act of Congress is unconstitutional because it

inflicts penalties upon State judges for their

judicial action. It does no such thing.

Id. at 348–49 (emphasis added).

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.

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:

[W]e have never held that the performance of

the duties of judicial, legislative, or executive

officers, requires or contemplates the

immunization of otherwise criminal deprivation

of constitutional rights. On the contrary, the

judicially fashioned doctrine of official

immunity does not reach ‘so far as to immunize

criminal conduct proscribed by an Act of

Congress . . . .’

Id. at 503 (citation to Ex parte Virginia, 100 U.S. 339, omitted;

quoting Gravel, 408 U.S. at 627). Similarly, in Dennis v.

Sparks, the Court affirmed judicial immunity from civil money

damages in the context of bribery allegations but explained that

judges “are subject to criminal prosecutions as are other

citizens.” 449 U.S. at 31. Crucially, the judge in Dennis

retained civil immunity because “the challenged conduct” —

allegedly issuing an injunction corruptly after accepting bribes

as part of a conspiracy — was “an official judicial act within

his statutory jurisdiction, broadly construed.” Id. at 29. The

scope of civil judicial immunity thus aligns with civil

Presidential immunity under Fitzgerald, but a judge has no

criminal immunity for the same “official act.” See also Imbler

  1. Pachtman, 424 U.S. 409, 429 (1976) (“Even judges, cloaked

with absolute civil immunity for centuries, could be punished

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

When considering the criminal prosecutions of judges,

other circuits have repeatedly rejected judicial criminal

immunity for official acts, largely in the context of bribery

prosecutions. See United States v. Claiborne, 727 F.2d 842,

845 (9th Cir.) (per curiam), cert. denied, 469 U.S. 829 (1984);

United States v. Hastings, 681 F.2d 706, 709–11 (11th Cir.

1982), cert. denied, 459 U.S. 1203 (1983); United States v.

Isaacs, 493 F.2d 1124, 1143–44 (7th Cir.) (per curiam), cert.

denied, 417 U.S. 976 (1974), overruled on other grounds by

United States v. Gimbel, 830 F.2d 621 (7th Cir. 1987). Former

President Trump argues that bribery allegations were not

considered “judicial acts” at common law, Appellant’s Br. 21,

but his sources do not support his conclusion. He is correct that

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.

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.

We therefore conclude that Article III courts may hear the

charges alleged in the Indictment under the separation of

powers doctrine, as explained in Marbury and its progeny and

applied in the analogous contexts of legislative and judicial

immunity. The Indictment charges that former President

Trump violated criminal laws of general applicability. Acting

against laws enacted by the Congress, he exercised power that

was at its “lowest ebb.” Youngstown, 343 U.S. at 637 (Jackson,

J., concurring). Former President Trump lacked any lawful

discretionary authority to defy federal criminal law and he is

answerable in court for his conduct.

  1. FUNCTIONAL POLICY CONSIDERATIONS

Even though it is proper under Marbury and its progeny

for an Article III court to hear criminal charges brought against

a former President, we “necessarily” must “weigh[] concerns

of public policy, especially as illuminated by our history and

the structure of our government,” including our “constitutional

heritage and structure.” Fitzgerald, 457 U.S. at 747–48; see id.

at 748 (our historical analysis merges with public policy

analysis “[b]ecause the Presidency did not exist through most

of the development of common law”); Clinton, 520 U.S. at 694

(courts apply “a functional approach” in determining the scope

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.

We note at the outset that our analysis is specific to the

case before us, in which a former President has been indicted

on federal criminal charges arising from his alleged conspiracy

to overturn federal election results and unlawfully overstay his

Presidential term.8

 We consider the policy concerns at issue in

this case in two respects. First, we assess possible intrusions

on the authority and functions of the Executive Branch and the

countervailing interests to be served as those concerns apply to

former President Trump’s claim that former Presidents are

categorically immune from federal prosecution. 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. Second, we examine the additional interests raised

by the nature of the charges in the Indictment: The Executive

Branch’s interest in upholding Presidential elections and

vesting power in a new President under the Constitution and

the voters’ interest in democratically selecting their President.

We find these interests compel the conclusion that former

President Trump is not immune from prosecution under the

Indictment.

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.

  1. CATEGORICAL IMMUNITY DEFENSE

Former President Trump argues that criminal liability for

former Presidents risks chilling Presidential action while in

office and opening the floodgates to meritless and harassing

prosecution. These risks do not overcome “the public interest

in fair and accurate judicial proceedings,” which “is at its

height in the criminal setting.” Vance, 140 S. Ct. at 2424.

Former President Trump first asserts that the prospect of

potential post-Presidency criminal liability would inhibit a

sitting President’s ability to act “fearlessly and impartially,”

citing the “especially sensitive duties” of the President and the

need for “bold and unhesitating action.” Appellant’s Br. 21–

22 (quoting Fitzgerald, 457 U.S. at 745–46). But “[t]he chance

that now and then there may be found some timid soul who will

take counsel of his fears and give way to their repressive power

is too remote and shadowy to shape the course of justice.”

Clark v. United States, 289 U.S. 1, 16 (1933). In Clark, the

Supreme Court dismissed the threat of a chilling effect, holding

that jurors could be subject to criminal prosecution for conduct

during their jury service and explaining that a “juror of integrity

and reasonable firmness will not fear to speak his mind if the

confidences of debate are barred to the ears of mere

impertinence or malice.” Id. Rather, the Court observed, “[h]e

will not expect to be shielded against the disclosure of his

conduct in the event that there is evidence reflecting upon his

honor.” Id. The Court reinforced the point in United States v.

Nixon, holding that it could not “conclude that [Presidential]

advisers will be moved to temper the candor of their remarks

by the infrequent occasions of disclosure because of the

possibility that such conversations will be called for in the

context of a criminal prosecution.” 418 U.S. at 712. So too

here. We cannot presume that a President will be unduly

cowed by the prospect of post-Presidency criminal liability any

more than a juror would be influenced by the prospect of postdeliberation criminal liability, or an executive aide would be

quieted by the prospect of the disclosure of communications in

a criminal prosecution.

Moreover, past Presidents have understood themselves to

be subject to impeachment and criminal liability, at least under

certain circumstances, so the possibility of chilling executive

action is already in effect. Even former President Trump

concedes that criminal prosecution of a former President is

expressly authorized by the Impeachment Judgment Clause

after impeachment and conviction. E.g., Oral Arg. Tr. 13:25–

14:9. We presume that every President is aware of the

Impeachment Judgment Clause and knows that he is “liable

and subject to Indictment, Trial, Judgment and Punishment,

according to Law,” at least after impeachment and conviction.

U.S. CONST. art. I, § 3, cl. 7.

Additionally, recent historical evidence suggests that

former Presidents, including President Trump, have not

believed themselves to be wholly immune from criminal

liability for official acts during their Presidency. President

Gerald Ford issued a full pardon to former President Richard

Nixon, which both former Presidents evidently believed was

necessary to avoid Nixon’s post-resignation indictment. See,

e.g., President Gerald R. Ford’s Proclamation 4311, Granting

a Pardon to Richard Nixon, Ford Presidential Library (Sept. 8,

1974); Statement by Former President Richard Nixon 1, Ford

Presidential Library (Sept. 8, 1974). Before leaving office,

President Bill Clinton agreed to a five-year suspension of his

law license and a $25,000 fine in exchange for Independent

Counsel Robert Ray’s agreement not to file criminal charges

against him. See John F. Harris & Bill Miller, In a Deal,

Clinton Avoids Indictment, WASH. POST (Jan. 20, 2001),

https://perma.cc/MMR9-GDTL. And during President

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.

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 behavior. “Where an official could be expected to

know that certain conduct would violate statutory or

constitutional rights, he should be made to hesitate . . . .”

Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). As the district

court observed: “Every President will face difficult decisions;

whether to intentionally commit a federal crime should not be

one of them.” Trump, --- F. Supp. 3d ---, 2023 WL 8359833,

at *9.

Former President Trump next urges that a lack of criminal

immunity will subject future Presidents to politically motivated

prosecutions as soon as they leave office. In the civil context,

the Supreme Court found official-act Presidential immunity

necessary in part to avoid “subject[ing] the President to trial on

virtually every allegation that an action was unlawful, or was

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.

On the other side of the scale, we must consider “the

constitutional weight of the interest to be served” by allowing

the prosecution of a former President to proceed. Fitzgerald,

457 U.S. at 754. The public has a fundamental interest in the

enforcement of criminal laws. Vance, 140 S. Ct. at 2424.

“[O]ur historic commitment to the rule of law . . . is nowhere

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

  1. 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.

There is also a profound Article II interest in the

enforcement of federal criminal laws. The President has a

constitutionally mandated duty to “take Care that the Laws be

faithfully executed.” U.S. CONST. art. II, § 3. As part of this

duty, the President is responsible for investigating and

prosecuting criminal violations. See Morrison v. Olson, 487

U.S. 654, 706 (1988) (Scalia, J., dissenting) (“Governmental

investigation and prosecution of crimes is a quintessentially

executive function.”); see also In re Lindsey, 158 F.3d 1263,

1272 (D.C. Cir. 1998) (“Investigation and prosecution of

federal crimes is one of the most important and essential

functions within [the President’s] constitutional

responsibility.”); Cmty. For Creative Non-Violence v. Pierce,

786 F.2d 1199, 1201 (D.C. Cir. 1986) (“The power to decide

when to investigate, and when to prosecute, lies at the core of

the Executive’s duty to see to the faithful execution of the

laws . . . .”). Beyond simply making explicit that a President

must enforce the law, the Take Care Clause plays a central role

in “signify[ing] . . . the principle that ours is a government of

laws, not of men, and that we submit ourselves to rulers only if

under rules.” Youngstown, 343 U.S. at 646 (Jackson, J.,

concurring). It would be a striking paradox if the President,

who alone is vested with the constitutional duty to “take Care

that the Laws be faithfully executed,” were the sole officer

capable of defying those laws with impunity.

The federal prosecution of a former President fits the case

“[w]hen judicial action is needed to serve broad public

interests” in order to “vindicate the public interest in an

ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754.

The risks of chilling Presidential action or permitting meritless,

harassing prosecutions are unlikely, unsupported by history

and “too remote and shadowy to shape the course of justice.”

See Clark, 289 U.S. at 16. We therefore conclude that

functional policy considerations rooted in the structure of our

government do not immunize former Presidents from federal

criminal prosecution.

  1. IMMUNITY FROM THE INDICTMENT’S

CHARGES

In addition to the generally applicable concerns discussed

supra, the allegations of the Indictment implicate the Article II

interests in vesting authority in a new President and the

citizenry’s interest in democratically selecting its President.

The Indictment alleges that the assertedly “official”

actions at issue here were undertaken by former President

Trump in furtherance of a conspiracy to unlawfully overstay

his term as President and to displace his duly elected successor.

See Indictment ¶¶ 2, 10. That alleged conduct violated the

constitutionally established design for determining the results

of the Presidential election as well as the Electoral Count Act

of 1887, neither of which establishes a role for the President in

counting and certifying the Electoral College votes. U.S.

CONST. art. II, § 1, cl. 3; id. amend. XII; 3 U.S.C. § 15,

amended by 136 Stat. 4459, 5238 (2022); see Indictment ¶¶ 9–

  1. The alleged conduct also violated Article II’s mandate that

a President “hold his Office during the Term of four Years.”

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).

The President, of course, also has a duty under the Take

Care Clause to faithfully enforce the laws. This duty

encompasses following the legal procedures for determining

election results and ensuring that executive power vests in the

new President at the constitutionally appointed time. To the

extent former President Trump maintains that the post-2020

election litigation that his campaign and supporters

unsuccessfully pursued implemented his Take Care duty, he is

in error. See infra n.14. Former President Trump’s alleged

conduct conflicts with his constitutional mandate to enforce the

laws governing the process of electing the new President.

The public has a strong interest in the foundational

principle of our government that the will of the people, as

expressed in the Electoral College vote, determines who will

serve as President. See U.S. CONST. amend. XII (“The Electors

shall meet in their respective states, and vote by ballot for

President and Vice-President. . . . The person having the

greatest number of votes for President, shall be the

President.”); Chiafalo v. Washington, 140 S. Ct. 2316, 2328

(2020) (“Early in our history, States decided to tie electors to

the presidential choices of [citizens].”). The Supreme Court

recently noted that “the Framers made the President the most

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.

Former President Trump’s alleged efforts to remain in

power despite losing the 2020 election were, if proven, an

unprecedented assault on the structure of our government. He

allegedly injected himself into a process in which the President

has no role — the counting and certifying of the Electoral

College votes — thereby undermining constitutionally

established procedures and the will of the Congress. To

immunize former President Trump’s actions would “further . . .

aggrandize the presidential office, already so potent and so

relatively immune from judicial review, at the expense of

Congress.” Youngstown, 343 U.S. at 654 (Jackson, J.,

concurring) (footnote omitted). As Justice Jackson warned:

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).

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.

Id. at 653–54 (Jackson, J., concurring).

We cannot accept former President Trump’s claim that 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. Nor can we sanction his apparent contention that the

Executive has carte blanche to violate the rights of individual

citizens to vote and to have their votes count.

* * *

At bottom, former President Trump’s stance would

collapse our system of separated powers by placing the

President beyond the reach of all three Branches. Presidential

immunity against federal indictment would mean that, as to the

President, the Congress could not legislate, the Executive could

not prosecute and the Judiciary could not review. We cannot

accept that the office of the Presidency places its former

occupants above the law for all time thereafter. Careful

evaluation of these concerns leads us to conclude that there is

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.

  1. THE IMPEACHMENT JUDGMENT CLAUSE

The strongest evidence against former President Trump’s

claim of immunity is found in the words of the Constitution.

The Impeachment Judgment Clause provides that “[j]udgment

in Cases of Impeachment shall not extend further than to

removal from Office, and disqualification to hold and enjoy

any Office of honor, Trust or Profit under the United States:

but 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. That language limits the

consequences of impeachment to removal and disqualification

from office, but explicitly preserves the option of criminal

prosecution of an impeached official “according to Law.”

Former President Trump agrees that the Impeachment

Judgment Clause contemplates and permits the prosecution of

a former President on criminal charges — he argues only that

such a former President first must be impeached by the House

and “convicted” by the Senate. Appellant’s Br. 12–14, 31. In

other words, he asserts that, under the Clause, a former

President enjoys immunity for any criminal acts committed

while in office unless he is first impeached and convicted by

the Congress. Under that theory, he claims that he is immune

from prosecution because he was impeached and acquitted. By

taking that position, former President Trump potentially

narrows the parties’ dispute to whether he may face criminal

charges in this case consistent with the Impeachment Judgment

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.

Former President Trump also implicitly concedes that

there is no absolute bar to prosecuting assertedly “official”

actions. He argues elsewhere in his brief that his impeachment

on the charge of inciting insurrection was based on conduct that

was the “same and closely related” to the “official acts”

charged in the Indictment. Appellant’s Br. 46 (“President

Trump was impeached and acquitted by the Senate for the same

and closely related conduct to that alleged in the indictment.”

(emphasis omitted)); id. at 42 (“[A]ll five types of conduct

alleged in the indictment constitute official acts.”). And he

agrees that if he had been convicted by the Senate in that

impeachment trial, he would not be immune from prosecution

for the “official acts” at issue here. See id. at 31. Thus, he

concedes that a President can be prosecuted for broadly defined

“official acts,” such as the ones alleged in the Indictment, under

some circumstances, i.e., following an impeachment

conviction.

The Impeachment Judgment Clause is focused solely on

those who are convicted by the Senate following impeachment

by the House. The first part of the Clause limits the penalties

that can be imposed based on an impeachment conviction:

“Judgment in Cases of Impeachment shall not extend further

than to removal from Office, and disqualification to hold and

enjoy any Office of honor, Trust or Profit under the United

States.” U.S. CONST. art. I, § 3, cl. 7. The second part makes

clear that the limited consequences of impeachment do not

immunize convicted officers from criminal prosecution:

“[T]he Party convicted shall nevertheless be liable and subject

to Indictment, Trial, Judgment and Punishment, according to

Law.” Id.

In former President Trump’s view, however, the word

“convicted” in the second phrase implicitly bestows immunity

on Presidents who are not convicted, based on a negative

implication. He asserts that the Impeachment Judgment Clause

“presupposes” that a President is not criminally liable absent a

conviction in the Senate. Appellant’s Br. 12. Other courts have

rejected this “tortured” interpretation of the Impeachment

Judgment Clause, which previously has been advanced to

support claims of judicial immunity. See Claiborne, 727 F.2d

at 846 (“According to Claiborne, this language means that a

federal judge cannot be indicted and tried in an Article III court

unless he has been removed from office by the impeachment

process. Both Isaacs and Hastings rejected this tortured

interpretation . . . .” (cleaned up)); Hastings, 681 F.2d at 710;

Isaacs, 493 F.2d at 1142 (The Impeachment Judgment Clause

“does not mean that a judge may not be indicted and tried

without impeachment first.”). Moreover, former President

Trump’s interpretation runs counter to the text, structure and

purpose of the Impeachment Judgment Clause. See N.L.R.B. v.

SW Gen., Inc., 580 U.S. 288, 302 (2017) (“The force of any

negative implication . . . depends on context,” and “applies

only when circumstances support a sensible inference that the

term left out must have been meant to be excluded.” (cleaned

up)); Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1069 (D.C. Cir.

2018) (“Finding the negative implication of a statute is a

context-specific exercise.”).

To begin, former President Trump’s reliance on a negative

implication is an immediate red flag: The Framers knew how

to explicitly grant criminal immunity in the Constitution, as

they did to legislators in the Speech or Debate Clause. See U.S.

CONST. art. I, § 6, cl. 1. Yet they chose not to include a similar

provision granting immunity to the President. See Vance, 140

  1. 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 nonconvicted 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”).

Another important clue is the Clause’s use of the word

“nevertheless,” as in “the Party convicted shall nevertheless be

liable.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added). The

meaning of “neverthele’ss,” according to a contemporaneous

18th century dictionary, is “[n]otwithsta’nding that,” which in

turn means “[w]ithout hindrance or obstruction from.” 2

Samuel Johnson, A Dictionary of the English Language 200,

216 (1773). The Impeachment Judgment Clause contains no

words that limit criminal liability — and, to the contrary, it uses

“nevertheless” to ensure that liability will not be limited (i.e.,

“hindered or obstructed”), even after an official is impeached,

convicted and removed from office.

The text of the Impeachment Judgment Clause reflects its

purpose: To allocate responsibility between the Legislative

and Executive branches for holding impeached officers

accountable for misconduct. In 18th-century Great Britain,

impeachment could result in “capital punishment . . . fine and

ransom[,] or imprisonment.” 2 Joseph Story, Commentaries on

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

  1. 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

intended impeached officials to face criminal liability

“according to Law.” U.S. CONST. art. I, § 3, cl. 7.

To counter the historical evidence that explains the

purpose of the Impeachment Judgment Clause, former

President Trump turns to one sentence written by Alexander

Hamilton in the Federalist 69: “The President of the United

States would be liable to be impeached, tried, and, upon

conviction of treason, bribery, or other high crimes or

misdemeanors, removed from office; and would afterwards be

liable to prosecution and punishment in the ordinary course of

law.” The Federalist No. 69, at 337 (Alexander Hamilton)

(Coventry House Publishing, 2015). He focuses on the word

“afterwards” and suggests that a President is not “liable to

prosecution and punishment” until “after[]” he has been

impeached and convicted by the Senate. See Appellant’s Br.

14–15. But we think the more significant word in Hamilton’s

statement is “liable,” which means “subject to.” Liable, 1 John

Ash, New and Complete Dictionary of the English Language

(1795). Hamilton specifies that a President would be subject

to impeachment, trial, conviction and removal from office; and

“afterwards” would be subject to prosecution and punishment,

without regard to the verdict in the impeachment proceeding.

10

Moreover, in the very next sentence of the same essay,

Hamilton stresses that the President must be unlike the “king

of Great Britain,” who was “sacred and inviolable.” The

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.”

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.

Other historical evidence further supports our conclusion.

For example, many founding-era sources state that an

impeached-and-acquitted official may face criminal indictment

and trial. Edmund Pendleton, President of the Virginia

Ratifying Convention, noted that Senate “obstruction” of an

impeachment charge would not allow an official to escape

accountability because the people “may yet resort to the Courts

of Justice, as an Acquital [sic] would not bar that remedy.” 10

The Documentary History of the Ratification of the

Constitution 1773 (Merrill Jensen et al, eds. 1976) (Letter from

Edmund Pendleton to James Madison, Oct. 8, 1787).

Similarly, James Wilson — a member of the Constitutional

Convention committee that drafted the Impeachment Judgment

Clause — argued as follows: “Though [Senators] may not be

convicted on impeachment before the Senate, they may be tried

by their country; and if their criminality is established, the law

will punish. A grand jury may present, a petit jury may convict,

and the judges will pronounce the punishment.” See 2 The

Documentary History of the Ratification of the Constitution

492 (Merrill Jensen et al, eds. 1976); see also 9 Annals of Cong.

2475 (1798) (statement of Rep. Dana) (“[W]hether a person

tried under an impeachment be found guilty or acquitted, he is

still liable to a prosecution at common law.”).

In drafting the Impeachment Judgment Clause, to the

extent that the Framers contemplated whether impeachment

would have a preclusive effect on future criminal charges, the

available evidence suggests that their intent was to ensure that

a subsequent prosecution would not be barred. See OLC

Double Jeopardy Memo at 122 (noting limited scope of

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

Finally, the practical consequences of former President

Trump’s interpretation demonstrate its implausibility. The

Impeachment Judgment Clause applies not just to Presidents

but also to the “Vice President and all civil Officers of the

United States.” U.S. CONST. art. II, § 4. Thus, his reading

would prohibit the Executive Branch from prosecuting current

and former civil officers for crimes committed while in office,

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).

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

  1. 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.

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

 

  1. DOUBLE JEOPARDY PRINCIPLES

Former President Trump alternatively argues that the

Impeachment Judgment Clause and “principles of double

jeopardy” bar his prosecution because he was impeached by the

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

  1. 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.

House of Representatives for the same or closely related

conduct but acquitted by the Senate. We disagree.

As we have discussed, supra Part III.C, the Impeachment

Judgment Clause addresses only convicted parties; it does not

address the consequences of a Senate acquittal. For the reasons

already stated, the Clause’s provision that “the Party convicted

shall nevertheless be liable and subject to Indictment, Trial,

Judgment and Punishment, according to Law” does not bar the

prosecution of an official who, like former President Trump,

was acquitted rather than “convicted” in an impeachment

proceeding; nor does it bar the prosecution of an official who

was never impeached in the first place. U.S. CONST. art. I, § 3,

  1. 7. The Clause simply does not speak to such matters. But

the weight of historical authority indicates that the Framers

intended for public officials to face ordinary criminal

prosecution as well as impeachment. Supra Part III.C.

To the extent former President Trump relies on “double

jeopardy principles” beyond the text of the Impeachment

Judgment Clause, those principles cut against him. The Double

Jeopardy Clause provides: “No person shall . . . be subject for

the same offence to be twice put in jeopardy of life or limb.”

U.S. CONST. amend. V. It has been interpreted to prohibit

“imposition of multiple criminal punishments for the same

offense.” Hudson v. United States, 522 U.S. 93, 99 (1997)

(citation omitted). Under precedent interpreting the Double

Jeopardy Clause, former President Trump’s impeachment

acquittal does not bar his subsequent criminal prosecution for

two reasons: (1) An impeachment does not result in criminal

punishments; and (2) the Indictment does not charge the same

offense as the single count in the Impeachment Resolution.

  1. IMPEACHMENT IS NOT “CRIMINAL”

Under the Double Jeopardy Clause, a defendant is not “put

in jeopardy of life or limb,” U.S. CONST. amend. V, when faced

with any penalty “that could, in common parlance, be described

as punishment”; instead, double jeopardy guards only against

“imposition of multiple criminal punishments for the same

offense.” Hudson, 522 U.S. at 99 (cleaned up). Although

double jeopardy applies only to criminal punishments,

impeachment imposes political punishments.

Impeachment is a political process that is instigated and

overseen by the Congress. See 2 Story, Commentaries § 784

(“There is wisdom, and sound policy, and intrinsic justice in

this separation of the offence, at least so far, as the jurisdiction

and trial are concerned, into its proper elements, bringing the

political part under the power of the political department of the

government . . . .” (emphasis added)); 9 Annals of Cong. 2475

(1798) (statement of Rep. Dana) (“The process in cases of

impeachment, in this country, is distinct from either civil or

criminal — it is a political process, having in view the

preservation of the Government of the Union.”). It is a tool

entrusted to elected officials and “designed to enable Congress

to protect the nation against officers who have demonstrated

that they are unfit to carry out important public

responsibilities.” OLC Double Jeopardy Memo at 130; see The

Federalist No. 66, at 324 (Alexander Hamilton) (Coventry

House Publishing, 2015) (“[T]he powers relating to

impeachments are, as before intimated, an essential check in

the hands of [Congress] upon the encroachments of the

executive.”); Mazars USA, LLP, 140 S. Ct. at 2046 (Thomas,

J., dissenting) (“The founding generation understood

impeachment as a check on Presidential abuses.”). The

consequences imposed by an impeachment conviction —

removal from office and disqualification from future service,

U.S. CONST. art. I, § 3, cl. 7. — are intended to hold officials

politically accountable, while leaving criminal accountability

to the Judicial Branch.

As a result of the political nature of impeachment

proceedings, impeachment acquittals are often unrelated to

factual innocence. See The Federalist No. 65, at 319 (In an

impeachment proceeding, “there will always be the greatest

danger that the decision will be regulated more by the

comparative strength of parties, than by the real demonstrations

of innocence or guilt.”). Former President Trump’s acquittal

in his impeachment trial on the charge of inciting insurrection

makes this point. The forty-three Senators who voted to acquit

him relied on a variety of concerns, many of which had nothing

to do with whether he committed the charged offense. Those

Senators cited jurisdictional reasons, see, 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.”); process-based reasons, see, e.g., Press Release, Sen.

Todd Young, Senator Young Statement on Impeachment Trial

(Feb. 13, 2021), https://perma.cc/26Z8-XYTT (“Simply put,

the U.S. House of Representatives conducted a rushed and

incomplete process for this snap impeachment.”); and political

reasons, see, e.g., Press Release, Sen. Ron Johnson, Johnson

Statement on Impeachment Trial of Former President Trump

(Feb. 13, 2021), https://perma.cc/L4EZ-7C77 (“The

Democrats’ vindictive and divisive political impeachment is

over. While there are still many questions that remain

unanswered, I do know neither the Capitol breach nor this trial

should have ever occurred. Hopefully, true healing can now

begin.”). Indeed, at least thirty Senators who voted to acquit

relied at least in part on a belief that the Senate lacked the

power to convict a former President. See supra n.13.

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.

In light of the very different procedures and purposes

associated with impeachment proceedings as compared to

criminal proceedings, former President Trump’s reliance on the

Double Jeopardy Clause is misplaced. Impeachment is not a

criminal process and cannot result in criminal punishment.

15

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

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.

  1. BLOCKBURGER TEST

Even if we assume that an impeachment trial is criminal

under the Double Jeopardy Clause, the crimes alleged in the

Indictment differ from the offense for which President Trump

was impeached. In determining whether two charges are the

“same” for double-jeopardy purposes, courts apply “the sameelements test” (also known as the “Blockburger test”): If “each

offense contains an element not contained in the other,” the

offenses are different. United States v. Dixon, 509 U.S. 688,

696 (1993) (citing Blockburger v. United States, 284 U.S. 299,

304 (1932)) (cleaned up). If the charges at issue are not the

“same offense” under that test, double jeopardy does not bar

prosecution. Id. at 696–97.

Under the Blockburger test, none of the four offenses

alleged in the Indictment is the same as the sole offense charged

in the article of impeachment. The indicted criminal counts

include conspiracy to defraud the United States under 18

U.S.C. § 371; conspiracy to obstruct and obstructing an official

proceeding under 18 U.S.C. §§ 1512(c)(2), (k); and conspiracy

to deprive one or more individuals of the right to vote under 18

U.S.C. § 241. See Indictment ¶¶ 6, 126, 128, 130. By contrast,

the article of impeachment charged former President Trump

with incitement of insurrection. See H.R. Res. 24, 117th Cong.

(2021). Each of the indicted charges requires proof of an

element other than those required for incitement. And the

and disqualification are not criminal punishments implicating double

jeopardy).

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.

Former President Trump does not dispute this analysis and

instead contends that, rather than applying the Blockburger

test, a subsequent criminal prosecution cannot be based on “the

same or closely related conduct” as an unsuccessful

impeachment. Appellant’s Br. 52. But that argument is

foreclosed by case law: “The ‘same-conduct’ rule . . . is wholly

inconsistent with . . . Supreme Court precedent and with the

clear common-law understanding of double jeopardy.” Dixon,

509 U.S. at 704; see also Hudson, 522 U.S. at 107 (Stevens, J.,

concurring in the judgment) (“[T]he Double Jeopardy Clause

is not implicated simply because a criminal charge involves

essentially the same conduct for which a defendant has

previously been punished.” (cleaned up)).

Thus, well-established law interpreting the Double

Jeopardy Clause undermines rather than supports former

President Trump’s argument that he may not be prosecuted.

Perhaps recognizing that normal double-jeopardy rules

disfavor his position, he claims that the Impeachment

Judgment Clause incorporates “double jeopardy principles”

that are distinct from the Double Jeopardy Clause. See

Appellant’s Br. 54 n.7. But if the “double jeopardy principles”

he invokes are unmoored from the Double Jeopardy Clause, we

are unable to discern what the principles are or how to apply

them. He thus fails to establish that his Senate acquittal bars

his criminal prosecution.

* * *

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).