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Prosecuting Trump: On the ruling by the U.S. Court of Appeals for the District of Columbia Circuit

The U.S. Court of Appeals for the District of Columbia Circuit has ruled that former U.S. President Donald Trump does not enjoy immunity from prosecution for crimes that he might have committed during his term in office, in the context of charges against him relating to undermining the constitutional democracy of the country. The ruling by the court’s federal appeals panel implies that Mr. Trump can be tried in the case against him relating to a conspiracy to overturn the results of the 2020 presidential election, in which he faces four counts including conspiring to defraud the U.S. and to obstruct an official proceeding. However, because a month has passed since the time that the court heard arguments on immunity and issued the latest ruling, a high-pressure situation has emerged in terms of scheduling and carrying out the conspiracy trial before the date of this year’s election, November 5. The prosecuting team, led by Special Counsel Jack Smith, is concerned that if Mr. Trump appeals the immunity decision and uses other stalling tactics in the conspiracy case, the trial might extend past the election date. In such a scenario, there might be a real risk that should Mr. Trump win the presidency again, he could use his position as a sitting president to either get the case against himself dismissed or potentially issue a self-pardon.

While the Circuit Court has given Mr. Trump until February 12 to appeal its decision in the U.S. Supreme Court, it is unclear whether the Supreme Court justices will take on such a highly charged political case as the present one. Even if they do, it might well be weeks or months before a decision is made. Already, the Supreme Court is set to hear arguments on whether, under the Constitution’s 14th Amendment, Mr. Trump’s name can be deleted from State ballots — as States such as Colorado have sought to do — under its “insurrection clause”. The bottom line is this: Mr. Trump will continue battling legal cases throughout this lopsided election season and will potentially continue doing so after the election too. What remains to be seen is whether his legal battles affect his reputation among voters, positively or negatively. In the former case, the scenario of a convicted President, even one who governs from prison, cannot be ruled out under the U.S. Constitution. If the cases diminish his overall popularity and he falls short of securing the presidency, his political career may be at an end, but Trumpism as a movement reflecting broad voter frustration with the policies and values of traditional Republican and Democratic politics will continue to shape the destiny of the United States.

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