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.DONATE
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