Big Losses for Trump!

Friday night, Judge Chutkan rejected Trump’s “big” argument that he couldn’t be criminally prosecuted for acts committed during his presidency because he had blanket immunity. We discussed the motion when he filed it in early October (read here if you want a refresher on its substance). At the time, I characterized the argument as a flawed one, likely to be a swing and a miss.

Judge Chutkan agreed. “The Constitution’s text, structure, and history do not support that contention [that the charges should be dismissed],” she wrote in her opinion. “No court—or any other branch of government—has ever accepted it. And this court will not so hold. 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.’” Read her entire opinion here.

She wrote: “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” That is what his lawyers argued, that Trump was above the law. As much as the delays and the timing insert an element of uncertainty into all of this, increasingly, there are signs we have judges who believe in this fundamental American principle and are committed to putting it into action.

Judge Chutkan also ruled against Trump’s motion to dismiss on the grounds that his conduct was protected by the First Amendment. “It is well established that the First Amendment does not protect speech that is used as an instrument of a crime, and consequently the Indictment—which charges Defendant with, among other things, making statements in furtherance of a crime—does not violate Defendant’s First Amendment rights,” she wrote. In other words, if Trump pointed a gun at a random passerby and said “stick ‘em up” as a prelude to robbing them while president, he could be prosecuted for that crime and his words would be evidence of and part of the commission of the crime.

The Judge did not rule on Trump’s other pending motions, including ones to dismiss on statutory grounds and due to alleged selective and vindictive prosecution. We discussed all of the dispositive motions in some detail here. She could issue her order on the remaining motions at any time. They are even less likely to be successful than the ones dismissed tonight.

But the Constitutional issues Judge Chutkan has ruled against Trump on are the ones he can appeal in advance of trial. By ruling promptly, She has set that process in motion. Appeals mean delay—not the sort of strategic, excessive delay that is Trump’s hallmark in court proceedings, but delay as a necessary incident to the process. That doesn’t make it any less concerning as the clock continues to tick. But in another interesting development today, that may suggest an appeal could be concluded promptly, the Court of Appeals for the District of Columbia ruled against Trump on the presidential immunity issue in a civil case that has been pending for about a year. Although one case is civil and the other criminal, the legal issue is based on the same notion of immunity, that presidents can’t be prosecuted for conduct committed in the scope of their presidency.

In its decision Friday, the appellate court wrote, "When a first-term President opts to seek a second term, his campaign to win re-election is not an official presidential act." They held the case would move forward and that while Trump could be permitted to argue that the official nature of his conduct means he can’t be held civilly accountable for it, he can’t end the case at this point on that basis.

As we have often noted here in a variety of legal proceedings where he has raised this issue, President Trump may have been entitled to immunity, but candidate Trump is not. The panel wrote, “In the proceedings ahead in the district court, President Trump will have the opportunity to show that his alleged actions in the run-up to and on Jan. 6 were taken in his official capacity as president rather than in his unofficial capacity as presidential candidate.” Good luck convincing a jury that trying to prevent state’s tallies of their citizen’s votes from being counted falls within the scope of presidential duties.

By analogy, the appellate court, with this precedent now on the books, could rule that Trump cannot dismiss the indictment at this point in the proceedings. That would let the case proceed to trial, where Trump can raise his defenses. And the appellate court in DC could do that quickly, with an expedited briefing schedule, as the legal issues were comprehensively briefed before the district court.

Friday, in a hearing before Fulton County Judge Scott McAfee, Trump’s lead Georgia lawyer Steve Sadow told the court that he believes that if Trump is elected president in 2024, the Supremacy clause of the U.S. Constitution would prevent any trial from taking place until “after he left the White House.” Technically, a president has no ability to interfere in a state prosecution; Trump couldn’t shut down a state prosecution like he could a federal one if his Attorney General was willing to play along, nor can he pardon himself. But that doesn’t mean he can’t try to tie up a state prosecution in court or with political maneuvering, playing, as always, for delays that hold him beyond the reach of the law.

It’s incumbent upon the appellate courts to handle these matters with all deliberate speed. Appeals take time, and Trump, like all criminal defendants, is entitled to have his case fairly considered with no prejudgement. But at the same time, Americans have rights that need to be protected. Our criminal justice system has to have the ability to let a jury decide whether a former president should be held accountable for his conduct. If we can’t hold the powerful accountable then it’s not the system Americans need and deserve. The District of Columbia prosecution is currently on track for a March trial. It’s up to the court of appeals and ultimately the Supreme Court to make sure that happens.

Democracy is on the ballot in 2024, but it’s also on the docket—the courts’ dockets. Their job is to make sure there is a process for Trump that is fair and efficient, but also one that gets the criminal cases in position, consistent with due process concerns, for juries to decide the question of Trump’s guilt, or not, in each case. That’s how our system works. Excessive delay, whether it’s a Trumpian strategy or court condoned/imposed is unacceptable. Americans need to know how juries of our peers assess the evidence against the former president before we vote in 2024. Only the courts can make sure that happens.

We’re in this together,

Joyce