United States v. Trump

91 F.4th 1173

UNITED STATES of America, Appellee v. Donald J. TRUMP, Appellant.

No. 23-3228

United States Court of Appeals, District of Columbia Circuit

Argued January 9, 2024

Decided February 6, 2024

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, 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.

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 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.

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 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 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 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...