Here is the appellate court's denial of Trump's claim of immunity:
https://storage.courtlistener.com/recap/gov.uscourts.cadc.40415/gov.uscourts.cadc.40415.1208593677.0.pdf

The decision opens by summarizing the allegations in the indictment, being careful to add that guilt hasn't yet been determined.

The court then dismisses the idea that they don't have jurisdiction over the issue and concludes that it does.

Then, on to immunity. The court rejects Trump's "separation of powers" argument, saying this:

That's strong language.

1/

While saying that this is an issue of first impression, the decision is constantly citing Supreme Court precedence and rulings. (The hope of course is that SCOTUS declines to hear the case or, if it does, declines to delay the trial.)

Screenshot #1: The court cites SCOTUS to debunk the "but he was the PRESIDENT" argument.

Screenshot #2: The idea here is: SCOTUS said a president is not immune from responding to a criminal subpoena why would he be immune from criminal indictment?

2/

As you might expect, courts really didn't like being told they had no authority to preside over the criminal trial of a fromer president. (Screenshot #1)

Criminal acts are not shielded by immunity and an indictment means a grand jury alleges that there were criminal acts, therefore, court have authority.

So simple, really.

Legislators have criminal or civil immunity for "what they say or do in legislative proceedings" but that criminal immunity is limited and doesn't apply here.

3/

The decision next spends some time on who has immunity for what.

Footnote #7 contains some mild judicial snark. Good lawyers don't quote dicta. (Being told by an appellate justice that you quoted dicta is almost as bad as being told you "misrepresented" the facts.) (Screenshot #1)

Next they analyze whether finding a president criminally liable under "functional policy considerations" and conclude that it is good policy. (Screenshot #2)

4/

And no, this won't "inhibit" presidents, except perhaps to inhibit them from breaking laws (my paraphrase of Screenshot #1)

In response to Trump's "this will open the floodgates to political persecutions" the Court points out the safeguards in place, grand juries, rules of evidence, etc.

Oh goodness. Screenshots 2 and 3 are 🔥

5/

(Am I up to 5? I can think, type, and read at the same time, but counting and spelling correctly are while thinking, reading, and typing is just too much 😂)

Now we get an emphasis on how serious the allegations are. (#1)

Oh, Yikes. See #2. Paraphrase: Nope you don't get to commit crimes, particularly the kind that let you neutralize the fundamental check on a president's power: The ability to be voted out of office.

Next they debunk Trump's silly argument about how the impeachment clause means that if he wasn't convicted, he can't be indicted later.

Finally they debunk Trump's Double Jeopardy argument: impeachment isn't a criminal proces.

6/

Apparently the Showhorses have kept their audiences in a state of constant panic because it took about a month for an appellate court to address an issue of first impression that SCOTUS will no doubt scrutinize.

Yes, democracy is backsliding. The cause is not how long it takes to write an appellate opinion. The meltdowns were pure theater.

7/

Answering a question here:

Dicta means something the court puts in the opinion that has no bearing on the decision. It's like a side comment.

It's basically an observation that wasn't necesssary for deciding the case.

Lawyers are supposed to be able to separate the rule and rationale from the dicta.

(As someone pointed out, sometimes it can be hard to tell. But I stand by my point: It's not good to be rebuked for that by an appellate court)

8/

I guess "dicta" sounds like a naughty word 😂

Don't expect the panic-mongering showhorses to read this opinion and say, "Wow. The appellate court even had to deal with a jursidictional issue thrown at them. It was unanimous, which meant judges with different ideologies had to agree. It's 57 page and may be enough for SCOTUS to say, "We don't need to touch this."

They never look back. It's on to the next invented crises.

Fox also invents crises. Just saying.

Also you can see I've reached my disgust point with it all.

9

Responding to a comment about how Fox hasn't reported this.

Fox inhabits a separate sphere. Their invented crisis is at the border.

"The invaders will destroy America!"

MSNBC's invented crisis is that the judicial processes take too long.

"The 'delays'* will destroy democracy!"

The problem is that the MSNBC's invented crisis is put forward by lawyers who should know better.

*"delays" is a loaded word that implies, without basis, that it's deliberate, evil, or incompetent.

@MarkAB

@Teri_Kanefield @MarkAB
Agreed...the hand wringing at MSNBC gets overwhelming at times.

It helps to talk to people who don't consume Infotainment all the time to get perspective. My wife and my neighbors are good for that. Informed, but not obsessive. Helps keep me grounded.

@darthstar @Teri_Kanefield @MarkAB

This is one of many reasons I no longer watch TV news.

@Teri_Kanefield @MarkAB Americans don't all get the same "news" anymore. And now people can't tell what's real or not. Really a problem.
@Teri_Kanefield @MarkAB And this is why I flip channels. I can only do so much yelling at the tv before the family starts muttering about an intervention

@MarkAB @Teri_Kanefield

TVs still come with "off" switches. For now.

@Teri_Kanefield Just FYI, all the legal commentators on MSNBC this morning have been saying that the court took time to write a thorough and complete unanimous decision rejecting all of Trump's arguments. I haven't heard any of them talking about how it took too long.

@GiddingsMJ I responded to this on the thread.

Did you see the series I did called "There are no Yankees here?"

It's the pinned post on my blog.

@Teri_Kanefield Yes, I read your series. Thank you. I was just reporting on what was being said on MSNBC this morning since I know you don't watch it. They were all very positive.
@Teri_Kanefield Arguably, the slowness of our court system *is* deliberate or incompetent. It's not intentional... but over criminalization combined with inadequate funding for the justice system that handles those cases isn't something that just happened. Politicians (and by proxy, voters) put that in place, either by choice or by incompetence.

@Teri_Kanefield @MarkAB

Been thinking about this since reading your work. The MSNBC 'Showhorse' fear mongering about the legal system may be less overt than the blatant disinformation on Fox, but it is very damaging none the less.

By sowing the seeds of distrust in the legal system, these pundits play into the same "corrupt government" themes. The effect is, rather than strengthen appreciation for the rule of law, they collaborate in tearing down our belief in our institutions.

@mastodonmigration @Teri_Kanefield @MarkAB While also playing on people's anxieties and ramping up the cortisol-fueled exhaustion

@thatmags @Teri_Kanefield @MarkAB

Exactly. Boosting their popularity by giving their audience what they want, not what they need.

@mastodonmigration @Teri_Kanefield @MarkAB agree the Horseshoe Theory effect could have similar negative impacts on democracy…
@mastodonmigration @Teri_Kanefield @MarkAB careful... @Teri_Kanefield will block you if you disagree with her. She always does. She's a serial institutional apologist.

@axeshun @Teri_Kanefield @MarkAB @Teri_Kanefield

Disagree. Really appreciate Teri's work and feel like it is an important counterbalance to 'reply guy' know-it-all legal hot takes and doomerism. The truth is that the issues are complex and the legal process is arcane. Unpacking it requires time and attention to nuance. Declaring everything corrupt and unfair is just unhelpful and a distraction to those who are trying to understand what's really going on.

@Teri_Kanefield @MarkAB Which is why I have no patience for either of those broadcasters!
@Teri_Kanefield @MarkAB it shouldn’t take so long to make someone a legal citizen
@Teri_Kanefield @MarkAB It’s either “Delays” or “Swift Justice”. One being pondered, considered & tied to a process; the other being a machete wielding giant that marches in, ‘takes care of business’, and it’s done. I prefer option 1.
@Teri_Kanefield

I never gave up hope—I know The Law often takes a long time to do its thing. It’s why I followed you — you keep us grounded in reality. Also, your background in criminal appeals gives you the knowledge & insight to translate to us what is happening & why. I for one am thankful for all the constitutional protections criminal defendants have, even when they are seemingly taken advantage of.

@Teri_Kanefield yeah I've seen some clips circulating as of late of some TV lawyers saying its too late, the red lights are flashing we need decisions yesterday!

I'm sure I'll see some more clips today with the goal posts moved in some way to keep the audience on the edge of their seats 🙄

@cdlhamma @Teri_Kanefield

Watch for hair raising comments on "the mandate" the appellate court must issue to return control of the matter to the trial court (and according to Lawfare staff typically takes 30-45 days following issuing a decision...).

@Teri_Kanefield grateful for your diligence and helpful and interesting explanations. As always.
@Teri_Kanefield Do you think the court's order that delays the trial only if Trump appeals to the Supreme Court within 6 days is an attempt to reduce Trump's ability to stall? It seems to give him only one bite at the apple to get a stay, instead of two.

@BenRossTransit @Teri_Kanefield

He could address that by submitting an appeal on that point only and request a stay until that matter has been decided?

What Does Today’s Immunity Decision Mean For Trump’s Delay Strategy?

Tuesday’s long-awaited ruling from the D.C. Circuit Court of Appeals roundly rejected Donald Trump’s claim that presidential immunity barred his Jan. 6 criminal trial from going forward. Typically…

TPM – Talking Points Memo

@Teri_Kanefield
“Also you can see I've reached my disgust point with it all.”

Nonetheless, I am appreciating your thoughtful assessment of things.

@Teri_Kanefield , yes, and there is an understandable urge to respond to the outrageous acts of Trump with impulsive reactions. Legal experts, however, should know how long skillful responses take. It is disgusting on so many levels what people will do for power in the form of money, attention, etc. Thank you for taking the time to explain the ruling to us and to put it into much needed context.
@Teri_Kanefield thank you for the boatload of sanity.
@Teri_Kanefield I’ve been flipping channels while doing other things, and have yet to see any mention of this on Fox. King Charles, Biden’s border crisis, Super Bowl snacks, yes. No immunity for Trump - all crickets.

@Teri_Kanefield

The panic mongers have been enjoying their screechfest, running around in the pale winter sun, flapping their wrists and running in circles.

AFAIK (you would know) this opinion breaks new ground, legally. The court knew they had to cover all the bases.

@Teri_Kanefield

Bravo. The absence of any dissenting opinion is pretty impressive.

It should follow from their finding that if a president does something which is unlawful, the courts have the competence to intervene and that any remedy imposed by them can have the effect of nullifying the (reversible) effects of that unlawful action.

@Teri_Kanefield
Thank you for putting this in layman's terms. I think SCOTUS could shadow-docket this and let the decision stand and they'd be doing the country and the world a huge favor.

The sooner Republicans realize Trump isn't going to be able to take back the White House, the sooner they'll get back to doing the people's work and passing leislation.

@Teri_Kanefield Really nice summary - thanks for the thread!

The opinion definitely reads to me like it was written for an audience of 9.

@mattblaze @Teri_Kanefield An audience of nine members, or 'explain it to me like I am nine years old'?
@martinvermeer @Teri_Kanefield Well, it was basically a PhD thesis written in response to a middle-school-level civics essay question ("does the law apply to the president?")

@mattblaze @martinvermeer

By audience of 9, Matt meant the decision was written for the Supreme Court justices.

@Teri_Kanefield @mattblaze Explaining jokes kills the fun ☹️
@Teri_Kanefield @mattblaze And BTW only five or so need this to be rubbed in.
@Teri_Kanefield You describe it so well. “Don’t even look back, on to the next crisis” is exactly why, FTMP, I don’t watch these shows and the ones I do watch, I only watch 5-10 minutes of them. A friend once described “Stupidity” as “Waking up in a brand new world every day.” I began to feel like I was hearing from people who are just that disconnected.

@Teri_Kanefield

R eading your comments about the panic-mongering around the wait for this immunity decision, I started thinking back to the nineties. My mom used to call me up all in a panic about stuff she heard on MSNBC. One time I told her, “Mom, please stop watching the news! It’s causing you too much stress.” To my credit I’ve taken my own advice—I try to stay informed without buying into speculation.

I’d say this infotainment angle has been polluting the news since even before the internet & goes back to 24 hour cable news channels. They have too much time to fill.

I was told that the Showhorses are praising the decision right now on MSNBC.

But did they say they were wrong 2 days ago?

2 days ago they were in a freakout state.

I have screenshots of some of my readers in a panic after hearing them freak out.

So everyone panics Sunday and the problem disappears Tuesday?

Does that strike anyone else as weird?

Adding: not everyone on MSNBC is a panic monger.

Some guests are reasonable.

They also serve a purpose.

But listening to people talk about the news is not news. It's entertainment. Unfortunately people think it's news.

For more, see the series I have pinned on my blog called "There are no yankees here"

Media is in disruption and needs clicks.

@Teri_Kanefield That’s a big part of why I don’t watch the “news” like that. I read several sites to keep on top of local and world news, but I don’t want ratings to control what I feel about those events.

@queenofnewyork @Teri_Kanefield There are some bright spots out there! I listened to one of the latest episodes of Legal AF last night. KFA interviews George Conway; He pointed out that having a decision within a month is still fast for an appellate decision, even on an expedited timeline. Marcy Wheeler also explains why it's complicated on EmptyWheel Fridays on Nicole Sandler's @nicolesandler show.

Episode webpage: https://cms.megaphone.fm/channel/legalaf

Media file: https://www.podtrac.com/pts/redirect.mp3/pdst.fm/e/chrt.fm/track/537745/pscrb.fm/rss/p/pdst.fm/e/arttrk.com/p/MMN23/claritaspod.com/measure/mgln.ai/e/1058/traffic.megaphone.fm/MTH4519905769.mp3?updated=1707085484

Federal Judge Sends CLEAR MESSAGE on Trump Tria... by Legal AF by MeidasTouch

Megaphone.fm

@Teri_Kanefield

I only go there for the stories about Trump throwing ketchup on the walls.

@Teri_Kanefield This hot mess is why I never watch msnbc even if they are supposedly liberal. Too much opinion; not enough actual news.
@Teri_Kanefield thank you for taking the time to share your expertise. I always look forward to your reasoned analysis when this sort of legal news breaks.
@Teri_Kanefield just a note for the people who aren't lawyers, there is no official way to separate dicta from the "holding" of the case. In most cases it's pretty obvious what is the official rule and what is just stuff the judge said along the way, but there certainly can be arguments over what's law and what's dicta.
@Amoshias fair enough.
@Teri_Kanefield I hope you didn't take that as me suggesting I thought your answer was incorrect or incomplete! I didn't see what I wrote as relevant to your main point, so why would you say it, but it's still interesting. Sorry if you took it any other way!

@Amoshias

Fair enough, but there were two things I never wanted to see in appellate decsions when I was practicing: "misrpresented the facts" or "relied on dicta."

it's a bit of a slap down

@Teri_Kanefield
Dictum? I hardly know him!
...I'll show myself out.