Opinion Trump’s biggest loss yet: No immunity
Chutkan’s ruling might turn out to be the most consequential legal defeat yet for Trump and quite possibly a decisive turning point in the 2024 presidential election.
In dispensing with Trump’s criminal immunity claim, Chutkan held emphatically, “The Constitution’s text, structure, and history do not support that contention. No court — or any other branch of government — has ever accepted it. And this court will not so hold.” She continued, “Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” She added, “Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Chutkan, looking at the text and structure of the Constitution and relevant history, made clear that in a criminal case, Trump has even less claim to immunity than would a sitting president in a civil case as set out in Nixon v. Fitzgerald. Unlike a civil suit for a sitting president, there is no concern here that prosecution would interfere with any official duties; moreover, the risk of “vexatious litigation” is greatly reduced because of protections afforded criminal defendants. (“In short, the concerns discussed in the civil context of Fitzgerald find no meaningful purchase here,” Chutkan wrote.)
In affirming the public interest in prosecution, Chutkan deftly quoted George Washington: “The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.” As for historical precedent, she noted that no claim of absolute immunity from criminal prosecution has ever been sustained (largely because no president, other than the pardoned Richard M. Nixon, has been credibly accused of felonies in office).
“Judge Chutkan’s ruling is, quite simply, as solid as a rock and as piercing as tempered steel,” constitutional scholar Laurence H. Tribe told me. “Aided by the D.C. Circuit’s unanimous rejection just hours earlier of Mr. Trump’s parallel but somewhat stronger claim in the civil liability context, Judge Chutkan has now rendered a devastating blow to the former president’s pretensions to what she rightly dismissed as a kinglike prerogative, one that our entire system of government rebels against.”
Chutkan also dispensed with Trump’s bogus First Amendment claims, holding that he is not being prosecuted for speech but for attempting to overthrow the election. Speech in furtherance of criminal activity is not protected, she noted. Likewise, the case does not represent viewpoint discrimination nor an attempt to criminalize a call for government action because, again, he is being prosecuted not for his views but for his illegal efforts to reverse the election.
Chutkan then rejected Trump’s inane claim of double jeopardy based on his impeachment trial. First-year law students understand that impeachment concerns only the ability to retain and run for office; the criminal justice system operates separate and apart from impeachment in service of different aims.
Finally, Chutkan rejected the argument that the due process clause prevents prosecution because the statutes at issue are “so vague — and difficult to administer — that defendants lacked notice of how it would be applied in any given case.” It’s comical for a former president to say he didn’t have warning of laws he was sworn to uphold. In any event, Chutkan explained that the statutes at issue don’t “require the Executive or Judicial Branch to ‘guess’ at the prohibited conduct. … Nor does finding that the Indictment complies with due process require the court to create a novel judicial construction of any statute.”
Her decision takes on even more importance given the U.S. Court of Appeals for the D.C. Circuit’s parallel decision in the civil case. Given its ruling in the civil case (in which more protections for Trump arguably apply), the appellate court in all likelihood would quickly affirm Chutkan’s ruling. As for further review to the Supreme Court, Tribe sees “no basis for the Court to come to Mr. Trump’s rescue, given the carefully limited reasoning of the district court’s opinion and the absence of any precedent or principle cutting in the former president’s favor.”
Moreover, Tribe told me that Chutkan helped “shield her ruling from reversal by emphasizing all the things she’s not deciding.” In fending off possible Supreme Court review, she not only emphasized that Trump might still be able to sustain his claims based on evidence presented at trial (a surefire way to dissuade the Supreme Court from taking up the case now) but also enumerated all the fact-intensive issues left to be decided (another way of waving off the high court):
“[The court] does not decide whether former Presidents retain absolute criminal immunity from non-federal prosecutions, or whether sitting Presidents are entitled to greater immunity than former ones. Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts ‘within the outer perimeter of the President’s official’ responsibility. … Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to ‘take Care that the Laws be faithfully executed’ includes within its ‘outer perimeter’ at least five different forms of indicted conduct; whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct ‘intertwined’ with otherwise constitutionally immune actions also receives criminal immunity. … Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.”
That’s as effective a way of discouraging Supreme Court review as one might ever see.
Chutkan’s ruling, coupled with the circuit court’s decision, represents a devastating blow to Trump’s attempt to evade accountability for Jan. 6. As Tribe put it, the decision might well have “shatter[ed] the last hope of the former president for avoiding the fate of running for the presidency as a convicted felon, a position in which much of his current support in the polls is bound to dissolve.” (Polling certainly bears out the conclusion that conviction as opposed to indictment would seriously hobble his election chances.)
Friday’s decisions open a relatively clear glide path to Trump’s March 4 trial, the very thing Trump has struggled to avoid. Within months, he will face prosecution by a capable Justice Department team armed with devastating facts and clear law before a competent judge.
Trump’s strategy to forestall justice by recapturing the presidency looks more and more like a pipe dream. That is unalloyed good news for our democracy
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