Biden, Bush Judges Join Together to Reject Trump Immunity Claims

A US Court of Appeals for the DC Circuit decision that rejected former President Donald Trump’s claim that he is immune from prosecution over charges of election subversion saw two appointees of President Joe Biden and a conservative stalwart on the court joining together for the ruling.

Judges Karen LeCraft Henderson, Florence Pan, and J. Michelle Childs were all on the per curiam decision, which denied Trump’s claims that he was protected by presidential immunity and double-jeopardy from Special Counsel Jack Smith’s charges that he illegally sought to overturn his 2020 election loss.

“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the panel wrote. No author is listed for the per curiam decision.

The trio is no stranger to Trump’s court battles, having each ruled on legal issues facing the former president and likely 2024 Republican presidential nominee. Here’s a look at each of the judges and what they’ve said about Trump’s legal fights.

Karen LeCraft Henderson

Henderson has sat on the DC Circuit since 1990, where she was appointed by George H.W. Bush. Ronald Reagan previously tapped her for the South Carolina federal trial court. Before joining the bench, she was in the South Carolina attorney general’s office and worked in private practice.

As the sole judge on this panel who served on the circuit during the Trump administration, Henderson has already ruled in several cases tied to the former president. In 2020, she was part of a majority ruling that directed a trial judge to dismiss charges against Trump’s former national security adviser Michael Flynn. That decision was overturned by the en banc DC Circuit later that year.

She was also part of a panel in 2022 that found Trump’s tax returns should be handed over to a congressional committee. In a concurrence, Henderson wrote that “Congress’s potential and incentive to threaten a sitting President with a post-Presidency” request for tax returns “in order to influence the President while in office should not be dismissed so quickly.”

She also wrote separately in a 2020 DC Circuit panel decision against a congressional subpoena for former Trump White House counsel Don McGahn’s testimony. While Henderson joined the majority opinion against the subpoena, she said the then-Trump Justice Department’s claim that McGahn had absolute immunity against testifying “is, in my opinion, a step too far, again, under Supreme Court precedent.”

Henderson was also part of a group of conservative DC Circuit judges who criticized court rulings in favor of a search warrant quietly issued by Special Counsel Jack Smith to Twitter, now known as X, for information about Trump’s account with the social media company. Judge Neomi Rao, a Trump appointee, wrote in the separate statement joined by Henderson and others that the decisions “break with longstanding precedent and gut the constitutional protections for executive privilege.”

Still, during oral argument last month in the immunity case, Henderson told Trump’s lawyer, John Sauer, that it is “paradoxical” to say that Trump’s constitutional duty to take care that the laws be faithfully executed “allows him to violate criminal laws.”

Florence Pan

One of two Biden appointees on the court, Pan was nominated to the DC Circuit by Biden in 2022, to fill the seat left open by Justice Ketanji Brown Jackson after she joined the Supreme Court. It was the second time Pan had followed in Jackson’s first steps; she also filled Jackson’s seat on the Washington federal trial court after Jackson moved to the appeals court.

Before becoming a federal judge, Pan was a judge on the Superior Court of the District of Columbia, and an assistant US attorney in the District of Columbia.

Pan wrote the appeals court’s 3-0 opinion last year that upheld a $350,000 fine against Twitter, rebranded as X, for defying a court order enforcing a search warrant from the special counsel into Trump’s social media records. Pan wrote that Smith, who is investigating Trump’s interference in the 2020 election and had instructed X not to disclose the warrant’s contents to Trump’s team, had “unquestionably compelling” interests in keeping the warrant confidential.

Pan was also on a DC Circuit panel that ordered Trump’s lawyer Evan Corcoran to appear before a grand jury over communications with the former president on his retention of classified documents at Mar-a-Lago.

Pan had tough questions for Sauer during oral argument in the immunity case, pressing him on whether, under his argument, a president who ordered Seal Team 6 to assassinate a political rival or sold military secrets could be criminally prosecuted.

J. Michelle Childs

The second of Biden’s appointees on the panel, Childs joined the DC Circuit in 2022 after she was floated as a possible nominee to the US Supreme Court, to fill the vacancy created by former Justice Stephen Breyer’s retirement.

Barack Obama in 2010 appointed her to the US District Court for the District of South Carolina. Earlier she was a state circuit court judge, and worked as an attorney for the state’s labor department.

Childs was part of the DC Circuit panels that affirmed a lower court’s fine against Twitter for failing to timely comply with a search warrant for records tied to the former president’s account on the social media platform, and backed a lower court’s ruling ordering a Trump lawyer to appear before a grand jury examining the former president’s retention of classified documents after leaving office.

During oral argument in January, Childs had questioned Sauer how presidents could be immune from prosecution, when former presidents Bill Clinton and Richard Nixon both took actions to protect themselves from prosecution.