DC Court Denies Trump’s Motion To Dismiss DOJ Criminal Case Based on Claimed ‘Absolute’ Presidential Immunity
“Defendant contends that the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he served as President of the United States, so long as he was not both impeached and convicted for those actions…. No court—or any other branch of government—has ever accepted it. And this court will not so hold.”
Earlier today, the Court of Appeals for the D.C. Circuit ruled that Trump was not immune from civil suit based on claims related to January 6, on the ground that the conduct constesting the election was in his capacity as a candidate, not as a president.
Late today, D.C. federal district court judge Tanya Chutkin denied Trump’s motion to dismiss Special Counsel Jack Smith’s case against Trump based on presidential immunity.
Because I’ve been traveling all day, I don’t have the mental focus to analyze it, but here’s the gist from the Opinion:
The United States has charged former President Donald J. Trump with four counts of criminal conduct that he allegedly committed during the waning days of his Presidency. See Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. 113 (“Constitutional Motion”).1 For the reasons set forth below, the court will DENY both motions.
***
III. EXECUTIVE IMMUNITY
Defendant contends that the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he served as President of the United States, so long as he was not both impeached and convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). 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. 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. 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….
Lacking an express constitutional provision, Defendant hangs his textual argument for immunity on the Impeachment Judgment Clause, but it cannot bear the weight he places on it. The Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.
U.S. Const. art. I, § 3, cl. 7. From this language, Defendant concludes “that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate.” Immunity Motion at 11. But Defendant is not President, and reading the Clause to grant absolute criminal immunity to former Presidents would contravene its plain meaning, original understanding, and common sense….
Consistent with its duty to not “decide questions of a constitutional nature unless absolutely necessary to a decision,” Clinton, 520 U.S. at 690 & n.11 (quoting Burton v. United States, 196 U.S. 283, 295 (1905)), the court emphasizes the limits of its holding here. It 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. Immunity Motion at 21 (formatting modified)…. 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.
IV. FIRST AMENDMENT
In his Constitutional Motion, Defendant first argues that the Indictment should be dismissed because it criminalizes his speech and therefore violates the First Amendment. But 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.
I’m not sure if this entitles Trump to an immediate appeal on this issue – I’ll have to wait for others to weigh in.
Keep in mind that this opinion only deals with the “absolute” immunity issue, he could assert immunity based on specific conduct brought out at trial, though it’s highly unlikely to be successful given the nature of this decision.
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Comments
“No court…has ever accepted it”? When, exactly, has any court ever been confronted with this issue? I don’t believe any other president has been subjected to a banana republic police state prosecution.
They’re making up the rules as they go. Typical Dems.
Just like watching Turban Durbin ram those nominations through the other day…
I’m confused by the court’s logic. The Clause it cites as a basis for denying the motion clearly says “that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate.” He was not convicted by the Senate of any crime.
They also deny the motion on the grounds that he was acting as a candidate not President. He was President at the time and he was acting on the belief the election laws of the USA were violated in multiple states. Whether they were or not isn’t the question.
If the Court’s opinion holds then it will have dire consequences for future administrations. Any action during the last year if the President makes known he or she is going to seek a 2cd term will leave him or her open to endless legal action after they are out of the White House
Trump is not the first federal office holder or even president that has faced legal issues during or after his time in office. He is also not the first to assert vacuous immunity claims.
If you know of another whose motives for conducting himself in office were put on trial in federal criminal court, do speak up.
Because “Trump’s motives are on trial” you somehow think that means the judge should issue an unconstitutional ruling?
Motive can matter. Yanking someone from a car can either be carjacking or saving their life. In other cases, such as impersonating electors and issuing fraudulent ascertainment documents or conspiring to do the same, motive is irrelevant.
I mean, nobody actually expected a DC court to rule in his favor, did they?
Still, the shallow and dismissive treatment to presidential immunity given by this hack is quite shocking.
I’d say I’d say if the
I’d say that if the Republicans ever take back the executive branch of the government, they should subject brand in the pedophile to all of this and more. Turnabout is fair play
they should also impeach the judges making this decision and then prosecute them and Smith for deprivation of rights under color of law
Alinsky rule #4. “Make the enemy live up to its own book of rules.” If the rule is that every letter gets a reply, send 30,000 letters. You can kill them with this because no one can possibly obey all of their own rules.
Precedent is precedent. Just like the “nuclear option” and Harry Reid.
Marks, yes perhaps use the same argument that Judges no longer have immunity. Let’s see how they like being treated the same was as they are treating this President. I suspect it will be the old “but that’s different” when it comes to them facing the same music 🙄
48 pages with dozens of citations going back to the Federalist Papers is “shallow and dismissive”? The idea that a president (or former president) is immune from criminal prosecution should be dismissed out of hand by all Americans.
Speaking of shallow and dismissive (of reality), Trump’s claim that the Impeachment Clause creates this alleged immunity is both. Arguments that baseless should result in sanctions for wasting the court’s time.
Just so you know, peppering a lengthy diatribe with citations does not make it correct. That’s actually common practice for legal hacks and law students.
Of course citations do not inherently make a legal document correct. Trump’s motion for immunity, which perfectly quotes the impeachment clause of the Constitution, but draws the entirely wrong conclusion via the logical fallacy of denying the antecedent, is a perfect example.
The publishers of this blog were up in the air and shocked about the outcome. Fool me once!
“it’s highly unlikely to be successful given the nature of this decision.”
Fruit of the poisoned B.
All that’s needed is to impeach Chutkin’s impartiality at appeal– a slam-dunk,, if Trump has lawyers worth anywhere near what he’s paying them — and this all falls like a house of cards.
how can it fall like a house of cards when the courts in DC, including SCOTUS suffer from terminal TDS?
It if gets to the Supreme Court, he should easily win. A rationale that allows any federal prosecutor to criminalize the president’s motives in conducting an official duty cannot stand. By definition, official acts of the president are not criminal. they may give rise to impeachment,, or be politically bad decisions, but involving the courts and hack federal prosecutors to second guess the president is stupid beyond stupid.
Roberts has a stated disdain for Trump and as seen in his Obamacare ruling, is easily cowed
How long will an appeal take to SCOTUS? To Circuit first?
The Deep State and Marxists are all out for declared Lawfare on DJT
Their Precious Democracy (TM) is at stake. The “precious” part reminds me of The Ring in “Lord of the Rings”. Never fear…. they have plenty of backup with the street thugs and the alphabet agencies that they own.
Tanya Chutkin is linked to GPS Fusion. How long does this have to go on before someone does the right thing.
Federal Judge Recuses Herself From A Second Fusion GPS Case
https://dailycaller.com/2017/12/12/federal-judge-recuses-herself-from-a-second-fusion-gps-case/
Trump’s DC Judge Worked For Law Firm That Employed Hunter Biden, Lobbied For Burisma
https://dailycaller.com/2023/08/01/trump-judge-firm-boies-schiller-flexner-hunter-biden-burisma-tanya-chutkan/
U.S. District Judge Tanya Chutkan of Washington, D.C., the judge overseeing former President Donald Trump’s case in the district, previously worked at a law firm that once employed Hunter Biden and worked closely with Ukrainian energy firm Burisma.
Chutkan spent 12 years working for Boies, Schiller, & Flexner LLP (BSF) where she specialized in white collar litigation and antitrust defense, before she was nominated to her current position by former President Obama, her official bio states.
Judge gives research firm in Trump-Russia probe more time to answer subpoena
A U.S. judge has given Fusion GPS, the research firm that hired a former British spy to investigate Donald Trump during the 2016 election campaign, until Thursday to reach an agreement with Congress over a subpoena for the firm’s bank records.
https://www.reuters.com/article/us-usa-trump-russia-house/judge-gives-research-firm-in-trump-russia-probe-more-time-to-answer-subpoena-idUSKBN1CU301/
Judge Tanya Chutkan of the U.S. District Court for the District of Columbia late on Tuesday temporarily extended the deadline for complying with the subpoena, according to court records seen on Wednesday.
Prominent US litigator David Boies to step down as law firm leader.
Boies of BSF is in deep on this.
Chutkan makes a glaring error right here…
“But Defendant is not President, and reading the Clause to grant absolute criminal immunity to former Presidents would contravene its plain meaning, original understanding, and common sense….”
He was President at the time of the charged conduct. The fact that is not president currently is irrelevant.
The multiple statements on the record expressing her antipathy and bias towards President Trump justify impeaching this lying hack for not recusing herself. Add to that just glaring incompetence.
Exactly my point. How did someone with this type of logic train manage to be a high powered lawyer and ascend to any bench?
You are correct. It is irrelevant that he was president at the time. Being president is not a defense against criminal actions.
No actually quite relevant that he was president because his motivations for conducting himself in office should never be an issue in a federal criminal trial, absent conviction upon impeachment, which never happened.
The DOJ and OLC disagree with you.
“The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
https://www.justice.gov/olc/opinion/sitting-president%E2%80%99s-amenability-indictment-and-criminal-prosecution
Even both the title and the summary explicitly states it applies to a SITTING President. Trump is not.
It is also an executive branch document, making it self-serving, and is not binding on the courts.
The document also nicely states that the Impeachment Clause does not require impeachment and conviction before indictment or criminal trial.
“No court—or any other branch of government—has ever accepted it”
Do these judges really not understand their role in our system of government? Yes, no court has ever accepted it, because no court has ever been asked to rule on it. Trump is asking the court to rule on it. Trump is asking the court to set a precedent. That’s what’s courts do. They set precedents, and then other courts rule based on that precedent.
To put the court’s comment in common vernacular: “What Trump is asking is unprecedented. Since there is no precedent, we can’t possibly rule in his favor. See. There. We have done our job”.
Like I said, the court doesn’t understand it’s role in our system of government.
I don’t believe that misunderstanding is on accident
Trump is not the first federal office holder or even the first president to face legal charges. This ruling is backed by dozens of citations ranging back to the founding of this country.
Another example of the court not understanding its role in our system of government: “that position does not confer a lifelong “get-out-of-jail-free” pass.”
Seriously? Are they so blatantly blind to Trump’s argument? He absolutely is not asking for a lifelong “get-out-of-jail-free” pass.”. I’ll spell it out plainly for the court so even a child can understand.
A political party in power will have very strong incentive to weaponize the justice system against a popular opposition candidate that might threaten the party in power. (Stop me if you’ve heard this one before). In order to prevent the party in power from weaponizing the justice system, that party must first try the president in the political arena and get buy in from both sides before it can use the full force of the federal government to imprison the opposition.
It’s not a get out of jail free card. It’s the last safeguard to prevent us from becoming the banana republic we have just become. Do these judges really not see this? How blind – or should I say partisan – can they be?
You forgot stupid. Of course, in their defense, they honestly believe that the heightened level of cheating during elections will ensure they never have to pay the piper.
You should re-read that section of the ruling. It eviscerates Trump’s claim that successful impeachment is necessary for criminal prosecution.
If, by “eviscerate.” you mean childishly dismissing the arguments for immunity based on a shallow, immature, and disrespectful view of our constitutional system and the role of the president, then yeah, quite an evisceration.
When I think of “childishly dismissive” I think of a couple of sentences worth of ad hominem attacks without addressing the arguments made.
One more thing. Just how blatantly political is this? Has there ever been another person in the history of the United States that faced four criminal indictments in four different jurisdictions from three different government agencies at the same time? Not to mention several civil charges? Anyone?
Al Capone, or Gotti, or Dillinger never faced so many federal charges at the same time. Is Trump such an evil, criminal mastermind that he needs to face four separate federal indictments at the same time? Or are they just bringing these charges because the party in power doesn’t want him to win? I’ll let you decide.
And what’s hilarious is that the more they outrageously persecute him, the more popular they are making him.
“Keep in mind that this opinion only deals with the “absolute” immunity issue, he could assert immunity based on specific conduct brought out at trial, though it’s highly unlikely to be successful given the nature of this decision.”
Correction: highly unlikely given the nakedly political prosecution of a former President by openly partisan prosecutors and blatantly biased judges.
Anyone who still has faith in the “judicial” system of the United States is a fool.
So now we’re supposed to believe that the Constitution doesn’t really say what it says and that an appeals court can now overturn SCOTUS,..Nixon v Fitzgerald
The constitution doesn’t say one word about presidential immunity. And Nixon v Fitzgerald only covers official acts.
That’s what we’re taking about here. Conduct within the ambit of official acts. Moreover, acts which are not in and of themselves criminal. They only become “criminal” in the twisted fantasy mind of that hack jack Smith when he tries to examine the President’s motives. Giving federal prosecutors such discretion to review presidential conduct is a distortion of our constitutional system. And the impeachment clause comes in because the official conduct of the president is not subject to review by federal prosecutors or courts, its a matter for Congress to impeach if Congress deems it warranted.
No, we’re not. These were not official acts. Trump’s only contention is that they were “actions performed within the ‘outer perimeter’ of his official responsibility”, i.e. although they were not official acts per se, they were in an area where he could act officially so that should be close enough for government work (literally). “Outer perimeter” is aka “penumbra”.
Aka within the ambit of an official act, as I wrote. Not sure why you’re arguing, if not just for the sake of argument.
And, I would add, having the courts and hack slob prosecutors delve into the mental state of the president to determine if his conduct was intended to be within the scope of his duties further supports a finding of immunity to protect the functions of the office from such prosecutorial abuses.
Do you believe that it is within the President’s official job description to ensure election integrity at the Federal level? How can simply questioning an election and requesting investigations etc within his Chief Executive powers be outside that job description?
That’s not what “official act” means. Nothing Trump did in this regard was an official act. He wants to stretch that immunity to non-official acts that were within the scope of his job description, considered as broadly as possible, or even simply could have been within that scope.
No the prosecutors want to ignore the fact that he was president, and their jackass charges would criminalize how he choose to carry out the functions of his office. And, it should be noted, the jackass charges should be dismissed as violating the first amendment if not on immunity grounds. This is a politically motivated prosecution that’s poisoning to death the rule of law,
The argument from the impeachment clause was stupid, and even an honest judge would have rejected it.
Based on what, that the Constitution doesn’t mean what it literally says?
It doesn’t say that at all. It’s a really stupid and perverse reading that Trump’s lawyers urged the court to adopt, and no honest judge would buy it. Nor would you buy it, if it weren’t Trump saying it.
Presidential immunity is inherent in the structure of the constitution to enable to the president to conduct his duties without fear of harassment. It isn’t the role of prosecutors to second guess presidential motives. I think we see the chaos this is causing even now, with state prosecutors joining in on the police state fun. And the text of the impeachment clause specifically provides remedies for misconduct, criminal prosecution ain’t one of them.
No, presidential immunity is NOT inherent in the structure of the Constitution. It is contrary to American legal and cultural heritage.
Impeachment is separate from criminal prosecution.
Baseless political prosecutions and biased judges are contrary to American legal and cultural heritage. I think you’re confusing this country with a third world banana republic police state hell. Jack Smith and Chutkan are disgraces. So for that matter is Garland. The sooner the S. Ct. dismisses this garbage the better.
Perhaps related to this decision, ABC News reported late yesterday that Trump has been stripped of his CIVIL immunity related to the J6 event as well. If that’s true – which I’m skeptical of because I’ve only seen it reported by ABC – that’s a gigantic issue for Trump. I can’t imagine the damages a DC jury might impose upon Trump. And, the list of potential litigants likely measures in the hundreds, if not thousands of police who were ‘injured.’ If a jury in Texas will return a billion-dollar verdict against Alex Jones, how much might a DC jury return against Trump? (DC is unarguably the most liberal metropolitan district in the nation. Only 5% of DC residents voted for Trump. Compare that to the 11% of San Francisco residents who voted for Trump).
Court packing is apparently a good investment, it’s paying big dividends to democrats.
Interesting. At least one of his prosecutors is campaining on prosecuting him, I assume that means they will not have “qualified immunity” then, since they’re prosecuting as part of a campaign.
This is the second time recently that I’ve read the ruling itself. In both cases the rulings were well written, had numerous citations, and were extremely persuasive instead of being the biased political hack jobs so many have alleged.
I think my favorite part is that Judge Chutkin repeatedly cited rulings from a case against Trump’s buddy in Clinton v. Jones, 520 U.S. 681, 702 (1997).
I bet you were also persuaded by rumors of a pee-pee tape, and, of course, you undoubtedly believe the Charlottesville lie and that Hunter’s laptop was Russian disinformation,
I bet you believed that Trump would lock her up, that the Second Amendment Coalition was going to end the assault on the Second Amendment, that Mexico was going to pay for the wall, and that Trump was going to pay off the national debt.
BTW what is the “Charlottesville lie”?