In addition to Judge Tanya Chutkan’s 48-page slap-down of Trump’s claim of “absolute presidential immunity” from prosecution, she also issued what is called a “Minute Order” denying Trump’s request for a stay of all proceedings against him while her decision is under appeal. Chutkan seemed to refer to the D.C. Court of Appeals decision which dropped earlier yesterday when she noted, “The rationale for immunizing a President’s controversial decisions from civil liability does not extend to sheltering his criminality.”
Trump claimed he was acting in his official capacity as president when he gave his fire-breathing January 6, 2021 call to arms on the Ellipse. But in another civil suit Trump joined after he lost the election, brought by Texas and other states to overturn the results of the election, Trump claimed he was acting as candidate for president, not in his official capacity as president. Make up your mind, Chutkan seemed to say. You can’t claim to be candidate for one purpose, and sitting president for the other.
Chutkan had some fun with Trump’s claim of double jeopardy. He asserted that his second impeachment trial found him innocent, so the federal charges against him would amount to a second prosecution for the same crimes. Trump asserted that impeachment is the only way to remove a president from office, and that negates any criminal charges thereafter.
“There is another way, besides impeachment and conviction, for a President to be removed from office and thus subjected to ‘the ordinary course of law,’ Chutkan wrote. “As in the Defendant’s case, he may be voted out [and] nothing in the Impeachment Judgment Clause prevents criminal prosecution thereafter.”
That part of Trump’s motion to dismiss was, of course, yet another heads I win, tails you lose position taken by Trump. He was saying, in effect, Presidents can’t be indicted criminally, and they can’t be charged with crimes committed after they leave office either. Chutkan called his theory a “get of jail free card that is found nowhere in the Constitution.”
Trump also made a claim that his speech on January 6, and his attempts to overturn the election of 2020, were protected by the First Amendment. Chutkan wasn’t having it. She cited the four charges against Trump in the federal indictment supported by Trump’s statements, both public and private, as instances of speech employed to instigate the commission of crimes.
“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 cited several Supreme Court cases to support the idea that prohibiting speech “integral to criminal conduct” does not “raise any Constitutional problem,” and noted: “Many long established criminal laws permissibly criminalize speech . . . that is intended to induce or to commence illegal activitie.”
Those sorts of laws, for example, make speech illegal if you pick up the phone and call a hitman and tell him to murder someone, or if you pick up the phone and ask the Georgia Secretary of State to “find 11,780 votes, which is one more than we have” so Trump could overturn the results of the presidential election in that state.
Trump also tried to make a case that the federal indictment should be dismissed because it violates the "due process" clause of the Fifth Amendment, which holds that “No person shall be deprived of life, liberty or property without due process of law.” To comply with due process, laws must give “fair warning” that conduct of a defendant is prohibited by law. Trump held in his motion to dismiss that there was a “long history” of government officials publicly claiming that election results were tainted by fraud or questioning election results, yet he is “the first person to face criminal charges for such core political behavior.”
Chutkan brushed off that pathetic claim with the old, ignorance of the law is no excuse argument: “There is also a long history of prosecutions for interfering with the outcome of elections; that history provided Defendant with notice that his conduct could be prosecuted.”
Legal experts on cable news said that Trump’s entire motion to dismiss was so weak that it simply amounted to an attempt to delay the trial, presently scheduled for March 4 of next year. Trump will now appeal Judge Chutkan’s ruling to the D.C. Circuit Court of Appeals, and from there to the Supreme Court. Trump will no doubt lose in the D.C. Circuit, but he has some friendly faces on the Supreme Court who might look kindly on some of his arguments.
The Supreme Court in February 2021 stood up to Trump and rejected challenges to the 2020 election he had filed in five battleground states that Biden won: Arizona, Georgia, Michigan, Pennsylvania, and Wisconsin. Three of the nine justices said they would have heard the Pennsylvania case, but even if Trump and his fellow plaintiffs had won the case, it would not have affected the outcome of the election.
This time, however, the votes of those three justices and two more could affect the outcome of the 2024 election. All they would have to do is delay their decision on Trump’s motion to dismiss past the November election. If Trump wins, he could order his own hand-picked and loyalty-tested Attorney General to drop the charges.
Lots at stake in these decisions, like the survival of our democracy. Stay tuned.
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist, and screenwriter. He has covered Watergate, the Stonewall riots, and wars in Lebanon, Iraq, and Afghanistan. He is also the author of five bestselling novels. You can subscribe to his daily columns at luciantruscott.substack.com and follow him on Twitter @LucianKTruscott and on Facebook at Lucian K. Truscott IV.
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