At issue in Fischer v. United States is a president's immunity and whether that extends to his time out of office. Without a Supreme Court ruling in his favor, Trump will be subject to prosecution by Special Counsel Jack Smith as Trump faces charges for his role in the Capitol demonstration of Jan. 6, 2021 (pictured above).
The appeals court ruled against Trump earlier this month. The three-judge panel included Joe Biden appointees Judges Florence Pan and J. Michelle Childs, and Karen LeCraft Henderson, an appointee of President George H.W. Bush.
The opinion, which had been expected given the skepticism with which the panel greeted the Trump team's arguments, was unsparing in its repudiation of Trump's novel claim that former presidents enjoy absolute immunity for actions that fall within their official job duties, The Associated Press reported.
"For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant," the court wrote. "But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."
The judges said the public interest in criminal accountability "outweighs the potential risks of chilling Presidential action," turning aside the claim that a president has "unbounded authority to commit crimes" that would prevent the recognition of election results or violate the rights of citizens to vote.
"We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter," the judges wrote.
Trump 0-for-2 in DC courts
It's the second time that a Washington, DC, judge has ruled the former president is subject to prosecution for actions and decisions while in office. In December, Barack Obama-appointed judge Tanya Chutkan ruled against Trump in district court.
Will Chamberlain, senior counsel for the Internet Accountability Project and Article 3 Project, said on American Family Radio Friday there's much more to consider than whether a brash former chief executive should be granted a "get-out-of-jail-free" card with no expiration date.
"It's a little more complicated than that. The president essentially is the Executive Branch while he's there and has the power over the military and has all sorts of different powers over executive agencies controlling what they do," Chamberlain told show host Jenna Ellis. "It's not as simple as applying the criminal law to the president without thinking about how the president is distinct."
But the precedent that will be established if Trump loses could have enormous consequences for all presidents moving ahead, he warns.
"You end up with situations where almost every president you could think of could be prosecuted nominally under criminal law," Chamberlain explained. "The most obvious example of this would be President Obama who used drone strikes in the course of the war on terror and killed an American citizen."
In 2011 Abdulrahman Anward al-Awlaki, 16, was killed in Yemen when Obama-approved drone strikes targeted his father, Anwar al-Awlaki, who was alleged to be an operational leader of al-Qaeda in the Arabian Peninsula.
"If there's no immunity for his official acts, then [Obama] could be prosecuted tomorrow for murder in federal court. Any prosecutor in any country could wake up one day and decide, 'I want to prosecute a former president for political reasons.' Well, they have plenty of ways to do that if there's no immunity for official acts," Chamberlain said.
The absence of immunity could have other unintended consequences, some observers say. Americans who may be frustrated by choosing between an aging incumbent president with questionable mental capacities and his bombastic chief rival could face even leaner prospects in the future.
While judges debate the status of President Trump and Citizen Trump, Trump's legal team contends the former president should have immunity for "official acts."
"That's a pretty good way of looking at things," Chamberlain offered. "The Trump team basically contends that presidents should have absolute immunity for official acts that they are not impeached and convicted for. If Congress in their wisdom decides to convict you of something, you can be prosecuted for it."
An aggressive position against Trump
The attorney argues the idea that immunity would cover sitting presidents then lapse immediately at the conclusion of their term just opens the door for baseless prosecution.
"It's a very aggressive position, and it's very difficult to reconcile with the Supreme Court's holdings on civil immunity for presidents. Nixon v. Fitzgerald said that in that circumstance they have absolute immunity," he noted.
Regardless, Chamberlain is convinced Trump has the upper hand in the argument by a "substantial margin."
"You could end up in a situation, if the Supreme Court does what the Left wants, that a former president could be prosecuted for murder tomorrow, but the family could not sue him for wrongful death. It's a very bizarre kind of weird outcome that I don't think the Supreme Court's going to like.
"I strongly suspect the Supreme Court is going to take this case and reverse the DC circuit," Chamberlain concluded.
