The rebuff by the Supreme Court of Special Counsel Jack Smith’s request for expedited consideration of the presidential immunities question places that issue squarely before the United States Circuit Court for the District of Columbia. 

Now Mr. Trump has made his case to a three rider panel of that tribuna. They are Judge Karen Henderson, appointed by President George H.W. Bush, and Judges Michelle Childs and Florence Pan, both named to the bench by President Biden.

The 45th president aims to persuade the  panel to overturn the decision by Judge Tanya Chutkan denying Mr. Trump’s claims of presidential immunity. He argues that “during the 234 years from 1789 to 2023, no current or former President had ever been criminally prosecuted for official acts. That unbroken tradition died this year, and the historical fallout is tremendous.” 

Writing to a court where Mr. Trump’s foes have often had the upper hand, Mr. Trump warns that Mr. Smith’s prosecution “threatens to launch cycles of recrimination and politically motivated prosecution that will plague our Nation for many decades to come and stands likely to shatter the very bedrock of our Republic.” 

Mr. Trump roots his argument in the Framers’ commitment to separated powers, venturing that the “Judicial Branch cannot sit in judgment over a President’s official acts.” For this proposition, the brief cites no less than Chief Justice Marshall, who in Marbury v. Madison found that a president’s official acts “can never be examinable by the courts.” 

What, though, of a former president, like Mr. Trump? Here Mr. Trump asks the appellate riders — and, it appears likely, eventually the Supreme Court — to rule on the meaning of the Constitution’s Impeachment Clause. The brief’s position — it is a linchpin of Mr. Trump’s defense — is that a president can only be criminally prosecuted for acts with which he was convicted at impeachment. 

Mr. Trump, though, was twice acquitted by the Senate in an impeachment, the second time of “incitement to insurrection.” His legal team is now hanging its proverbial hat on that “not guilty verdict,” arguing that it means that Mr. Smith’s case is “unlawful and unconstitutional.” If the Circuit  is convinced that a “President who is acquitted by the Senate cannot be prosecuted for the acquitted conduct,” then Mr. Smith’s case is undone.

Crucial to Mr. Trump’s bid for immunity is his contention that every action he took in the aftermath of the 2020 presidential election is within what the Supreme Court has called the “‘outer perimeter’ of his official responsibility.” That standard, laid down with respect to President Nixon, is informed by what the court calls the president’s “unique position in the constitutional scheme.” That derives from the vesting of all the powers of the Executive in “a President of the United States.”

Mr. Trump marshals instances where a parsimonious view of presidential prerogative could have resulted in charges for decisions. What, he wonders, of President John Quincy Adams’s “allegedly ‘corrupt bargain’ in appointing Henry Clay as Secretary of State,” or “President George W. Bush’s allegedly false claim to Congress that Saddam Hussein possessed stockpiles of ‘weapons of mass destruction’”? He also cites President Obama’s order to assassinate an American citizen, Anwar al-Awlaki.  

“In each case,” Mr. Trump notes, “outraged political opponents eventually came to power” after those acts that divided the country, and were denounced as instances of presidential abuse.  “Yet no President,” he adds, “was ever prosecuted, until this year.” He calls this an “unbroken tradition” that implies that the power to prosecute for official acts “does not exist.”

In a somewhat surprising rhetorical maneuver, Mr. Trump cites the Speech and Debate Clause immunity offered to lawmakers as a precedent to the protection he seeks. That constitutional clause ordains that solons must not be questioned in “any other place” for any speech or debate in either house of Congress. Presidential immunities, while entrenched in Supreme Court precedent, are not enumerated but flow from the grant of power to the President.