Jack Goldsmith on Why SCOTUS Should Review the D.C. Circuit's Decision on Presidential Immunity

The case raises an issue of high importance and the opinion may contain some loose reasoning.

I have a generally favorable view of the U.S. Court of Appeals decision in United States v. Trump, concluding that Donald Trump does not have absolute immunity from prosecution for his actions seeking to overturn the 2020 presidential election results.

The 57-page opinion is careful and thorough, and was produced on a short timeline. The panel released the opinion a scant 28 days from oral argument and was unanimous. It also reached the correct result (a point on which my co-blogger Keith Whittington agrees).

Harvard law professor Jack Goldsmith agrees that the court reached the correct conclusion, but believes the case nonetheless merits Supreme Court review. He makes the case over at the Lawfare blog. His essay begins:

I agree with the D.C. Circuit's conclusion in United States v. Trump that former president Trump is not immune from prosecution for criminal acts committed in office. Nonetheless, I think the Supreme Court should review the case. The main reason to grant certiorari is simply that, as Supreme Court Rule 10 states, "a United States court of appeals has decided an important question of federal law"—a former president's immunity from prosecution—"that has not been, but should be, settled by [the Supreme] Court." An additional but less obvious reason why the D.C. Circuit decision is important is that it contains loose reasoning that will have a potentially large collateral impact on the construction of criminal statutes to burden the Article II authorities of sitting presidents.

We will see whether the Supreme Court agrees.