Trump’s actions, the panel concluded, fell within the latter category and thus could be reviewed by the courts. “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,” the panel wrote.
Trump’s next set of claims revolved around public policy considerations. He claimed that allowing criminal prosecutions of former presidents would undermine the executive branch’s ability to carry out its constitutional functions. If former presidents could face criminal charges, Trump warned, it might have a chilling effect on how presidents wield executive power. While undoubtedly biting their judicial tongue, the panel effectively noted that a chilling effect on criminal conduct was precisely the point of criminal laws.
“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,” it noted, citing the experiences of Richard Nixon and Bill Clinton. “Even former President Trump concedes that criminal prosecution of a former President is expressly authorized by the Impeachment Judgment Clause after impeachment and conviction.” (We’ll come back to that clause later.)