UNITED STATES OF AMERICA v. DONALD J. TRUMP

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
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President President TRUMP criminal impeached United state immune Court impeached Judgment Clause
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
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President President TRUMP criminal impeached United state immune Court impeached Judgment Clause
 
 
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) 
 
 
 
D. 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, 
2 
 
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. 
 
R. 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 
3 
 
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.  
4 
 
I.  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. 
5 
 
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 non-
citizens 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 
6 
 
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 election-
certification 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 
7 
 
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 forty-
three 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).  
8 
 
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. 
9 
 
government’s motion to expedite the appeal, and oral argument 
was held on January 9, 2024.  
II.  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-
10 
 
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.  
A. 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 
11 
 
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, 
12 
 
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 
13 
 
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. 
14 
 
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 
 
15 
 
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). 
B. 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–
79.  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).  
16 
 
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-of-
powers doctrine conferred . . . an analogous and comparable 
17 
 
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 
18 
 
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 
19 
 
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.   
20 
 
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.  
A. 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.  
21 
 
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 
22 
 
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, 
23 
 
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–
89.  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 
24 
 
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 
25 
 
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 
26 
 
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 
27 
 
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).6   
 
6  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.   
28 
 
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 
v. Pachtman, 424 U.S. 409, 429 (1976) (“Even judges, cloaked 
with absolute civil immunity for centuries, could be punished 
29 
 
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 
 
7  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. 
30 
 
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. 
B. 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 
31 
 
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. 
32 
 
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 
33 
 
more than a juror would be influenced by the prospect of post-
deliberation 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 
34 
 
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 
35 
 
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 
36 
 
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 
v. 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 
37 
 
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. 
2. 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–
10.  The alleged conduct also violated Article II’s mandate that 
a President “hold his Office during the Term of four Years.”  
38 
 
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 
39 
 
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). 
40 
 
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 
41 
 
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.   
C. 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 
42 
 
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 
43 
 
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 
44 
 
provision granting immunity to the President.  See Vance, 140 
S. 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 non-
convicted 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 
45 
 
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 
126.  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 
46 
 
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.”   
47 
 
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 
48 
 
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). 
49 
 
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 
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.”).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. 
50 
 
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   
IV.  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 
17.  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. 
51 
 
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, 
cl. 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.  
52 
 
A. 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, 
53 
 
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.