Editor’s Note: Joshua A. Douglas is a law professor at the University of Kentucky J. David Rosenberg College of Law. He is the author of the forthcoming book “The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights” and the book “Vote for US: How to Take Back Our Elections and Change the Future of Voting.” He is also the host of the Democracy Optimist podcast. Find him at www.joshuaadouglas.com. The opinions expressed in this commentary are his own. Read more opinion at CNN.
The DC Circuit Court of Appeals has issued a thorough, unanimous decision declaring that former President Donald Trump is not immune from criminal prosecution for his alleged role in seeking to undermine the 2020 election.
As expected, Trump asked the US Supreme Court on Monday to block that decision, hoping to further delay his trial with a stay of the DC Circuit’s order. The Supreme Court should not take the bait. It should deny the stay request immediately and allow the prosecution to proceed — sooner rather than later — so that voters know before they cast their ballots this November whether Trump is convicted of the crimes that special prosecutor Jack Smith alleges he committed. (Trump has denied any wrongdoing.)
The DC Circuit’s unanimous decision was abundantly clear: A former president is not immune from criminal prosecution for engaging in conduct that Congress has criminalized. As the court noted, “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant.”
The court rejected all of Trump’s arguments to the contrary. It found that prosecuting Trump would not violate separation of powers principles because the president is not above the law. It said that Trump’s conduct, if proven, was not pursuant to his official duties. In fact, “Former President Trump’s alleged conduct conflicts with his constitutional mandate to enforce the laws governing the process of electing the new President.” It also declared that a president need not be impeached by the House and convicted in the Senate before a criminal prosecution may proceed.
Beyond soundly rejecting Trump’s claims, the court also added some context on the unprecedented nature of Trump’s alleged criminal conduct as charged in the indictment, justifying the unprecedented action of prosecuting a former president:
“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.”