Two judges appointed by Democratic administration and one by Republican administration quoted Judge Chutkin of the lower court with approval. After first finding interlocutory appeal jurisdiction by distinguishing the Midland Asphalt case, the panel addressed the two prongs of the Appellant's imunity argument. The appeals court stated that his assault on the structure of our government was unprecedented. Accepting his claim of unbounded authority to commit crimes would, "neutralize the most fundamental check on executive power--the recognition and implementation of election results...at bottom [his] stance would collapse our system of separated powers... since as Madison stated in Federalist No51, "dependence on the people is, no doubt, the primary control on the government." Denying his immunity claim based on separation of powers principles the judges concluded would be to maintain its proper balance.
Turning to the Impeachment Clause justification the court found it inapplicable for two reasons: one, Impeachment is a political process controlled by Congress not a judicial one in which criminal penalties could be imposed and, two the charges in his impeachment trial are not the same as those charged by the indictment. The Constitution informs us of the authors' intent to not rule out criminal prosecutions for crimes committed in office. The Impeachment Clause limits its affect to removal and disqualification from office and goes on to state that, "the party convicted [in the Senate] shall nevertheless be liable and subject to indictment, trial, judgment and punishment according to law". The judges go on to explicit reject Trump's negative inference of conviction in the Senate as a prerequisite to prosecution for various contextual reasons, noting in the process that Alexander Hamilton in Federalist No 65 thought that the punishment of a dangerous officer as a criminal "remains within the province of courts of law...". Clearly the appellate judges are writing for the edification of the "originalists" on the Court.
The concluding paragraph of the opinion is forceful:
We have balanced [Citizen] Trump's asserted interest in executive immunity against the vital public interests that favor allowing this prosecution to proceed. We conclude that concerns of public policy, especially as illuminated by history and the structure of our government, compel the rejection of immunity in this case [citing Fitzgerald 457 U.S. 747.] Accordingly the order of the district court is AFFIRMED.
Will the grievous injury to American democracy committed by Gerald Ford in 1974 giving a blanket pardon to Richard Nixon for the crimes he committed in office be finally rectified? Or will a partisan and corrupt Supreme Court deliver Citizen Trump from accountability? Our "long national nightmare" is far from over. So stayed tuned.
