A ruling that President Trump can be prosecuted for allegedly seeking to overturn the result of the 2020 election notwithstanding that he was in the White House at the time is a ringing victory for Special Counsel Jack Smith, whose criminal cases have become snarled by delays. 

The decision from a panel of three riders of the United States Appeals Circuit for the District of Columbia found that the view of the law of the man they call “Citizen Trump” would “collapse our system of separated powers by placing the President beyond the reach of all three Branches.” That finding appears ticketed for consideration by the Supreme Court.

The circuit acknowledges a paucity of precedent, arguing that the “question of whether a former President enjoys absolute immunity from federal criminal liability is one of first impression” — meaning it’s never been heard before, The president has been found to enjoy extensive immunity from civil suits. That protection extends, the Nine have found, to the “outer perimeter” of his official duties. 

The appellate court, though, declined Mr. Trump’s invitation to, as the judges put it,  “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.” It was a per curiam decision, meaning that Judges Karen Henderson, Michelle Childs, and Florence Pan wrote as one. 

Those three jurists found that the Framers’ scheme of separated powers “does not bar the federal criminal prosecution of a former President for every official act.” They reckon that Mr. Trump “lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.” Mr. Smith alleges four felonies in respect of January 6. 

The riders do not base their findings solely on black letter law, but instead find that the “interest in criminal accountability, held by both the public and the Executive Branch, outweighs the potential risks of chilling Presidential action.” Mr. Trump, though, maintains that if presidential immunity is circumscribed, presidents will be tentative in discharging their constitutional obligation to “take Care that the Laws be faithfully executed.”

The opinion allows that prosecuting a former president is no small thing. It quotes the Supreme Court for the proposition that the “President is the only person who alone composes a branch of government.” The observation of the riders, though, that the “President is vested with ‘executive Power’” is a niggling formulation, departing from the Constitution’s declaration that “The executive Power shall be vested in a President of the United States of America.” Emphasis is inserted by the Sun.

The circuit court, though, quotes the Supreme Court’s judgment in 1933 that the mere fact 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.” The riders add that President Ford’s pardon to President Nixon underscores that former presidents have thought themselves to be vulnerable to prosecution. 

Mr. Trump argues that allowing him to be prosecuted would render former presidents forever vulnerable to criminal cases brought by political opponents. The D.C. circuit counters that this is the “first time since the Founding that a former President has been federally indicted” and concludes that the “risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.”

The appeals court appears to be of the opinion that Mr. Smith’s accusation that, as they put it, Mr. Trump acted “in furtherance of a conspiracy to unlawfully overstay his term as President and to displace his duly elected successor” is one that it is especially important to keep free of an umbrella of immunities because the “alleged conduct violated the constitutionally established design for determining the results of the Presidential election.” 

The finding that the “alleged conduct conflicts” with Mr. Trump’s — and every president’s — “constitutional mandate to enforce the laws governing the process of electing the new President” could reverberate widely. It means that Mr. Trump’s actions between the 2020 election and January 6 were outside the scope of his office, and could surface on Thursday when the Supreme Court considers when he is disqualified from office under the 14th Amendment.

The appeals court writes that if Mr. Smith proves his case, he will have established the existence of an “unprecedented assault on the structure of our government.” These three jurists — Mr. Trump could seek a hearing before the full circuit, and then the Nine — declare that they “cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter.”

The riders chafe at Mr. Trump’s argument that an acquittal at impeachment — as he won against for the charge of incitement to insurrection — means that he is immune from subsequent criminal prosecution for the same underlying acts. The court observes that this is too subtle by half, as the “Framers knew how to explicitly grant criminal immunity in the Constitution, as they did to legislators in the Speech or Debate Clause.” The riders find that double jeopardy protection is unavailing for Mr. Trump.

The court goes so far as to say that “as a result of the political nature of impeachment proceedings, impeachment acquittals are often unrelated to factual innocence,” meaning that Mr. Trump’s “not guilty” verdict at the Senate carries no weight in a court of law. This opinion, though, does carry weight, if it does not fall on further appeal. 

In a statement following the hearing, a spokesman for Mr. Trump, Steven Cheung, shares that the 45th president “respectfully disagrees with the DC Circuit’s decision and will appeal it in order to safeguard the Presidency and the Constitution.” Mr. Trump has until February 12 to appeal — that is when the case’s pause will expire. Five votes at the Supreme Court will be required to extend the stay on the proceedings.