United States v. MacDonald, 435 U.S. 850, 860-61, 98 S.Ct. 1547, 1552-53, 56 L.Ed.2d 18 (1978). In United States v. Hastings, 681 F.2d 706 (11th Cir.), stay denied, ___ U.S. ___, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1982), the court concluded that a claim identical to the one raised here was an appealable collateral order. The defendant there, as here, contended that, under the separation of powers principle, an active federal judge has an absolute right not to be indicted and tried in a federal court unless and until he is impeached and convicted by Congress and removed from office.
And an inferior-court judge's freedom to disobey a superior court's order is not the sort of independent judicial decision-making that immunity is designed to protect. Accord United States v. Claiborne, 727 F.2d 842, 847–48 (9th Cir.1984) (rejecting a judge's argument that separation-of-powers concerns should prevent executive officers from prosecuting federal judges for acts involving exercise of their judicial power); United States v. Hastings, 681 F.2d 706, 710–11 (11th Cir.1982) (same); United States v. Isaacs, 493 F.2d 1124, 1140–44 (7th Cir.1974) (same). With no support in history, law, or logic, we cannot extend judicial immunity to criminal contempt.
When considering the criminal prosecutions of judges, other circuits have repeatedly rejected judicial criminal immunity for official acts, largely in the context of bribery prosecutions. See United States v. Claiborne, 727 F.2d 842, 845 (9th Cir.) (per curiam), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984); United States v. Hastings, 681 F.2d 706, 709-11 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Isaacs, 493 F.2d 1124, 1143-44 (7th Cir.) (per curiam), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974), overruled on other grounds by United States v. Gimbel, 830 F.2d 621 (7th Cir. 1987). Former President Trump argues that bribery allegations were not considered "judicial acts" at common law, Appellant's Br. 21, but his sources do not support his conclusion.
At least two circuits have held, however, that separation-of-powers concerns do not justify immunizing federal judges from criminal prosecution as a general matter. See United States v. Hastings, 681 F.2d 706, 710-11 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983) (rejecting defendant's argument that separation-of-powers concerns should prevent executive officers from prosecuting federal judges for acts involving exercise of their judicial power); United States v. Claiborne, 727 F.2d 842, 847-48 (9th Cir.) (same), cert. denied, 469 U.S. 829, 105 S.Ct. 113, 83 L.Ed.2d 56 (1984). as a practical matter, investigative agencies rarely expend their limited manpower and resources on a mere whim or in fabricating criminal activity.
In upholding the denial of defendant's motion, this court relied on two cases which dismissed similar claims. United States v. Claiborne, 727 F.2d at 845, citing United States v. Hastings, 681 F.2d 706 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974) (per curiam), cert. denied, 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146. These cases squarely held that the Constitution does not immunize a federal judge from criminal prosecution prior to impeachment.
The motion was denied, and the denial was affirmed on appeal. United States v. Hastings, 681 F.2d 706 (11th Cir. 1982), cert. denied, 459 U.S. 1203, 103 S.Ct. 1188, 75 L.Ed.2d 434 (1983). The two defendants then had separate trials.
Echoing the concerns expressed in Myers, the Third Circuit observed the effect that the threat of criminal prosecution can have on an elected public official's performance of his constitutionally assigned duties:United States v. Myers, 635 F.2d 932, 935–36 (2d Cir.1980); United States v. Claiborne, 727 F.2d 842, 844–45 (9th Cir.1984); United States v. Hastings, 681 F.2d 706, 708–09 (11th Cir.1982); United States v. Durenberger, 48 F.3d 1239, 1241–42 (D.C.Cir.1995). See also United States v. Levine, 658 F.2d 113, 125 (3d Cir.1981) (observing extension of Helstoski rationale employed by Second Circuit to separation of powers issue); United States v. Bird, 709 F.3d 388, 391 n. 13 (5th Cir.2013) (noting Second Circuit's treatment of separation of powers issue).
This ad hoc probationary scheme obviously creates at a minimum the appearance of impropriety, if not an inference of actual bias. United States v. Hastings, 681 F.2d 706, 710-11 (1982), cert. denied, 459 U.S. 1203 (1983), cited in the Dissent, is inapposite. The judge in Hastings sought judicial immunity from a federal criminal prosecution.
Four courts of appeals have concluded that criminal defendants may take interlocutory appeals to make arguments about the separation of powers. See United States v. Rose , 28 F.3d 181, 185–86 (D.C. Cir. 1994) ; United States v. Claiborne , 727 F.2d 842, 844–45 (9th Cir. 1984) ; United States v. Hastings , 681 F.2d 706, 708–09 (11th Cir. 1982) ; United States v. Myers , 635 F.2d 932, 935–36 (2d Cir. 1980). But those decisions do not persuade us on that broad proposition.
The Constitution itself preserves criminal prosecution, see U.S. Const. art. I, § 3, cl. 7 ("the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law"), and at least three circuits have held that prosecution of judges can precede impeachment. See United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984); United States v. Hastings, 681 F.2d 706, 710 (11th Cir. 1982); United States v. Isaacs, 493 F.2d 1124, 1140-44 (7th Cir. 1974). Even Justices Douglas and Black, who dissented in Chandler from the Court's narrowly framed denial of relief for a district judge whose colleagues had limited his case assignments, acknowledged that judges were subject to criminal prosecution.