Yesterday, Judge Chutkan denied Trump’s pre-trial motion to dismiss the charges against him in the DC federal January 6 criminal indictment on the basis that former presidents are absolutely immune to prosecution unless impeached for that conduct. Unsurprisingly Chutkan thoroughly dismembered this argument in a somewhat lengthy 48 page ruling. Let us take a brief tour of some of the highlights; as the legal claims at stake are fairly simple and overwhelmingly one-sided, I won’t delve much into Chutkan’s legal reasoning. I will also be silently omitting some citations and formatting from my quotes.
Chutkan starts strong (page 6):
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 defends against any originalist arguments, extensively leaning on sources from the founding (pages 6 - 7):
In interpreting the Constitution, courts ordinarily “begin with its text,” but there is no provision in the Constitution conferring the immunity that Defendant claims. […]
The lack of constitutional text is no accident; the Framers explicitly created immunity for other officials. The Constitution’s Speech and Debate Clause provides that “Senators and Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.” […]
Nor is the Constitution silent on the question because its drafters and ratifiers assumed the President would enjoy the immunity Defendant claims. To the contrary, America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time. In Federalist No. 69 – titled “The Real Character of the Executive” – Alexander Hamilton emphasized the “total dissimilitude between [the President] and the king of Great Britain,” the latter being “sacred and inviolable” in that “there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected.”
Trump’s core argument is that the Impeachment Judgement Clause in the constitution immunizes criminal prosecution for conduct that has not been successfully impeached; Chutkan quotes this clause as:
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.
Obviously the clause says nothing of the sort. Chutkan even resorts to citing a dictionary to interpret the text with yet smaller and simpler words (page 9):
At the Founding, as now, “nevertheless” meant “notwithstanding that,” and “notwithstanding that” meant “[w]ithout hindrance or obstruction from.” Neverthele’ss [sic], Samuel Johnson, A Dictionary Of The English Language (1978) (4th ed. 1773)
She goes on to explain basic logic (page 11):
In addition to lacking textual or historical support, Defendant’s interpretation of the Clause collapses under the application of common sense. For one, his reasoning is based on the logical fallacy of “denying the antecedent.” From the statement “if the animal is a cat, it can be a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.”
…immediately before not so subtly reminding Trump that he lost (page 11):
Even assuming that negative implication finds some traction when applied to sitting Presidents, the logic certainly does not hold for former Presidents. That is because 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,”: As in Defendant’s case, he may be voted out.
Once again, Chutkan addresses any overly-literal originalists (page 13):
In sum, nothing in the Constitution’s text supplies the immunity that Defendant claims. To be sure, “a specific textual basis has not been considered a prerequisite to the recognition of immunity,” and so the inquiry is not confined to the express terms of our founding charter.
I have sometimes wondered how one distinguishes an ordinary juror from a grand juror, and now I know the answer, though it conjures quite the imagery (page 20):
only result in conviction if the grand jury finds probable cause and the prosecutor, judge, and all twelve petit jurors agree that the charges are legitimate and have been proven beyond a reasonable doubt.
Chutkan wraps up a discussion of the public interest in criminal justice with a heavy title drop (page 22):
The fundamentally public interest in a criminal prosecution explains why it “may proceed without the consent of the victim and why it is brought in the name of the sovereign rather than the person immediately injured by the wrong.” Put differently, the very name of this case confirms the public’s particular stake in its adjudication: it is the United States of America v. Donald J. Trump.
We get a brief taste of American civil religion (page 24):
Perhaps no one understood the compelling public interest in the rule of law better than our first former President, George Washington. His decision to voluntarily leave office after two terms marked an extraordinary divergence from nearly every world leader who had preceded him, ushering in the sacred American tradition of peacefully transitioning Presidential power – a tradition that stood unbroken until January 6, 2021.
Chutkan brings up the significance of the Nixon pardon, which immunized him from criminal prosecution, and would have not been necessary had he already been immune1The motion for dismissal feels almost like Trump begging for such a pardon – too late and from the wrong authority. He pardoned others; he cannot pardon himself! (page 27):
President Ford specifically noted the “serious allegations” that, without a pardon, would “hang like a sword over our former President’s head” until he could “obtain a fair trial by jury.”
Chutkan once again reminds Trump that he is not king (pages 29 - 30):
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. “No man in this country,” not even the former President, “is so high that he is above the law.”
The next passage in the ruling concerned Trump’s other ludicrous defense, that it would be a violation of the first amendment to prosecute a crime if one of the components of the crime involved a speech act. While I did not find myself compelled to quote from this passage, Chutkan equally thoroughly dismantled the defense here.
Finally, we get a reprisal of the Impeachment Judgment Clause with the defense that criminal prosecution of an action that was impeached would be double jeopardy. Once again, Chutkan has to invoke basic grammar to explain the meaning of a plain English sentence (pages 40 - 41):
Defendant contends the Impeachment Judgment Clause contains a negative implication: if a person is not convicted in impeachment proceedings, they may not be prosecuted. In statutory interpretation, the expressio unius canon, which provides that “expressing one item of an associated group or series excludes another left unmentioned,” does not apply unless “circumstances support a sensible inference that the term left out must have been meant to be excluded.” Because Defendant’s reading is not supported by the structure of the Constitution, the historical context of the impeachment clauses, or prior constitutional precedents, expressio unius does not apply.
Throughout the document, Judge Chutkan is carefully mute on the subject of to what extent current presidents are subject to criminal prosecution; however I cannot escape the impression that she believes little or no such immunity exists to protect current presidents, either.
Legal documents, such as Judge Chutkan’s denial I have been quoting from, are generally quite readable and accessible. Because all people are subject to the law, it is a bedrock principle of justice that the law and its applications should be available and understandable to the common citizen; indeed this was the first of eight principles British jurist Tom Bingham identified in his lauded work The Rule of Law. I encourage everyone to be willing to dive into legal primary documents without being intimidated; for politically hot topics, it often becomes clear that the seemingly-diverse mainstream media is re-circulating the same two or three narrow perspectives and completely ignoring most of the primary documents. I have found that Jack Smith’s motions, for example, are clear and concise, and appear to be written for the public as well as the judge.
For high quality secondary analysis of legal proceedings, including more substantive commentary than I gave above, I can recommend former defense attorney Teri Kanefield, who has commented on this ruling; Marcy Wheeler, who has also commented, observing that Judge Chutkan likely waited on making this ruling until the parallel decision that Trump is not immune to civil liability, citing that ruling twice within 12 hours of its publication; and Lawfare Media, which has an extensive overview of some of the ongoing Trump prosecutions. To find an inventory of primary documents, under the column headed “Trump Prosecuted in the District of Columbia”, click “Docket Watch”.
The motion for dismissal feels almost like Trump begging for such a pardon – too late and from the wrong authority. He pardoned others; he cannot pardon himself!↩︎
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