Not a King, and Not Immune:
the DC Circuit Court’s Clarion Order


On Tuesday, in a closely reasoned and narrow ruling, the US Court of Appeals for the District of Columbia unanimously rejected the most extravagant assertions of immunity from federal prosecution that I’ve ever heard.

In particular, criminal defendant Donald Trump had argued to the lower district court that, as a former President, he enjoys “absolute immunity” from the law with respect to any his actions while President. At oral argument before the DC Circuit Court, his attorneys even argued that a President could order the assassination of his political enemies and walk away scot-free, so long as he had not first been both impeached by the US House of Representatives and convicted by at least 60 Senators for the activity.

As a quick review: On August 1, 2023, Special Prosecutor Jack Smith, pursuant to the investigation and vote of a federal grand jury, filed a four-count indictment against the twice-impeached criminal defendant, that is, for Conspiracy to Defraud the United States, Conspiracy to Obstruct an Official Proceeding (the certification of presidential electoral ballots), Obstruction of and Attempt to Obstruct an Official Proceeding, and Conspiracy Against Rights (including the right to vote and to have one’s vote counted.)

On December 1, 2023, District Court Judge Tanya Chutkan rejected Trump’s little power grab, stating that “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” Going further, and citing to an 1882 Supreme Court decision, she stated that “‘No man in this country,’ not even the former President, ‘is so high that he is above the law’.”

The DC Circuit Court panel, on February 6, 2024, in a unanimous ruling that may yet save the Republic, largely agreed. In words that would sting the conscience of any former president who retained one, the panel wrote that “[i]t 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.” Elsewhere, the panel declared, carefully, that “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.”

It has been observed, with the curious case of Trump — an adjudicated rapist, traducer, and menace now under indictment for 91 criminal offenses in 4 felony cases — that the American public at least is being afforded the unique opportunity to learn something about our criminal and civil justice systems. And yet, in my view, something even more important may be gained — given the resurgent irrationalism, if not solipsism, that increasingly characterizes our age. That is, an appreciation for elementary logic.

For instance, consider the Impeachment Judgment Clause, which is Art. I , § 3, cl. 7. of the Constitution. Have you read it? Even so, let us now, altogether, read it again, slowly.

“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: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.”

It is not very difficult, is it? And yet Trump and his lawyers appear to have misread it! Indeed, they claimed, in their defense against the federal conspiracy and obstruction charges, that the clause carries a “negative implication,” namely, as I indicated before, that where a former president had not been both charged and convicted on grounds of impeachment, then he or she cannot be held liable and subject to indictment, trial, judgment and punishment in a court of law.

But that is to commit the elementary fallacy of denying the antecedent. As the DC Circuit panel noted:

“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).”

Put more simply: The statement, “If Johnny comes marching home again, we’ll give him a hearty welcome then,” simply implies nothing at all about the circumstance that will obtain if Johnny does not come marching home again. All that the premise implies is that, in the circumstance that Johnny receives no hearty welcome, we can surmise, logically, that he didn’t come marching home. [That, indeed, is the proper “negative implication.”]

But suppose Johnny came riding home (hurrah), for instance on a horse, from his battles for the Union during the Civil War. Well, then, Johnny will not have “marched home.” Still, however, we would not be surprised if his little town were to give him a most “hearty welcome then.” And so on.

Really, it is one thing for criminal defendant Trump and his team to attack the foundations of our democratic system and its signal tenet, the rule of law. But it is quite another also to commit the logical fallacy of denying the antecedent. That, perhaps, would be a bridge too far even for our present Supreme Court — as the DC Circuit panel seemed to hope when it wisely elected to cite former Justice Antonin Scalia rather than, say, Aristotle, on the question.

Our Supreme Court’s possible consideration, next, of criminal defendant Trump’s defense of absolute immunity — his attempted arrogation to himself of the divine right of kings — is a matter to which we will have occasion to return soon enough.

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