[In stinging opinion, judge Tanya Chutkan rejects idea that being
commander in chief confers lifelong ‘get-out-of-jail-free’ pass]
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FEDERAL JUDGE REJECTS TRUMP’S ATTEMPT TO DISMISS 2020 ELECTION
SUBVERSION CASE  
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Hugo Lowell
December 1, 2023
The Guardian
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_ In stinging opinion, judge Tanya Chutkan rejects idea that being
commander in chief confers lifelong ‘get-out-of-jail-free’ pass _

Former US president Donald Trump at a campaign rally in Hialeah,
Florida, on 8 November 2023. , Octavio Jones/Reuters

 

A federal judge on Friday rejected Donald Trump
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dismiss his federal criminal case over his efforts to overturn the
2020 election results, ruling that he enjoyed no immunity from
prosecution simply because it was based on actions he took when he was
still president.

The order by the presiding US district judge Tanya Chutkan
simultaneously denied two of Trump’s motions to dismiss – on
presidential immunity grounds and constitutional grounds – setting
the stage for Trump to appeal to the DC circuit and ultimately the US
supreme court.

“The court cannot conclude that our constitution cloaks former
presidents with absolute immunity for any federal crimes they
committed while in office,” Chutkan wrote. “Nothing in the
constitution’s text or allocation of government powers requires
exempting former presidents.”

“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,”
Chutkan’s 48-page opinion
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Trump’s lawyers had always expected to lose their initial attempt to
toss the charges, which is scheduled for trial in federal district
court in Washington next March, and to use the appeals process as
their final strategy to delay the case as long as possible.

The former president has made it no secret that his strategy for all
his impending cases is to delay, ideally beyond the 2024 election in
November, in the hopes that winning re-election could enable him to
potentially pardon himself or direct his attorney general to drop the
charges.

Trump’s lawyers filed their motions to dismiss in October, advancing
a sweeping and unprecedented interpretation of executive power
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argued former presidents could not be held criminally accountable for
actions undertaken while in office.

The filing contended that all of Trump’s attempts to reverse his
2020 election defeat in the indictment, from pressuring his
vice-president, Mike Pence, to stop the congressional certification to
organizing fake slates of electors, were in his capacity as president
and therefore protected.

At the heart of the Trump legal team’s filing was the extraordinary
contention that not only was Trump entitled to absolute presidential
immunity, but that the immunity applied regardless of Trump’s intent
in engaging in the conduct described in the indictment.

The judge emphatically rejected the presidential immunity arguments in
the opinion accompanying her order, writing that neither the US
constitution nor legal precedent supported such an extraordinary
extension of post-presidential power.

“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,” Chutkan
wrote. “Former presidents enjoy no special conditions on their
federal criminal liability.”

The judge appeared to take particular umbrage at the Trump lawyers’
claim that it was unconstitutional to charge Trump just because no
other former presidents before him had been charged, writing that
while his case was unprecedented, so too were the crimes for which he
has been charged.

“The supreme court has never immunized presidents – much less
former presidents – from judicial process merely because it was the
first time that process had been necessary,” Chutkan wrote, invoking
US history and the pardon conferred to Richard Nixon after the
Watergate scandal

The presidential pardon to Nixon was granted and accepted precisely to
prevent the possibility of criminal prosecution over Watergate, the
opinion said – without which, there would have been no need for a
pardon in the first place.

The judge noted, however, that she was not expressing an opinion on an
adjacent argument Trump had raised about whether his actions related
to January 6 could be prosecuted because they fell within the
so-called “outer perimeter” of his duties as president.

Chutkan’s denial came hours after the DC circuit also rejected
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attempt to use a similar presidential immunity argument to protect
himself from several civil lawsuits seeking to hold him accountable
for inciting the violence that took place during the January 6 Capitol
attack.

In a statement, a Trump spokesperson attacked the order: “Radical
Democrats, under the direction of crooked Joe Biden, continue to try
and destroy bedrock constitutional principles and set dangerous
precedents that would cripple future presidential administrations and
our country as a whole, in their desperate effort to interfere in the
2024 presidential election.”

_HUGO LOWELL is a reporter in the Washington bureau of the Guardian
covering Donald Trump and the Justice Department.
Twitter @hugolowell_

_THE GUARDIAN. Help us deliver the independent journalism the world
needs. Support the Guardian by making a contribution.
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