The ruling that he is not immune from criminal prosecution, for his role leading up to J6, could determine the viability of Trump’s 2024 presidential bid.
The ruling that he is not immune from criminal prosecution, for his role leading up to J6, could determine the viability of Trump’s 2024 presidential bid.
F ormer president Donald Trump was dealt two defeats in Washington, D.C., federal courts on Friday. Of most immediate consequence, Judge Tanya Chutkan, who is presiding over the criminal case in which Trump is charged with interfering in the 2020 election, ruled that he is not immune from criminal prosecution.
In the other case, of comparatively less consequence though still significant, the D.C. Circuit Court of Appeals held in Blassingame v. Trump that the former president has not established that he has immunity from civil lawsuits for his actions leading up to the Capitol riot on January 6, 2021. This is a tentative ruling: The three-judge panel did not say that Trump could not establish immunity; just that, at this premature stage in the proceedings, it has not been proven whether his pre-riot “Stop the Steal” shenanigans, including his January 6 speech on the Ellipse, were “official” or “unofficial” acts.
Blassingame involves three lawsuits against Trump, brought by two Capitol Police officers and eleven congressional Democrats. Under the Supreme Court’s 1982 decision in Nixon v. Fitzgerald, presidents are granted complete immunity from civil suit for actions (including statements) in furtherance of the president’s official duties. By contrast, under the high Court’s 1997 decision in Clinton v. Jones, presidents do not have immunity from civil suit for private acts that are clearly separate from the official duties of the presidency. Such “unofficial” acts are deemed to include strictly political tasks, such as cutting campaign ads. But the panel — which produced opinions from all three judges — was equivocal, conceding the extraordinary breadth of the chief executive’s duties, such that even ostensibly unofficial actions could be substantively official.
Judge Chutkan’s ruling on the question of immunity from criminal prosecution is more significant. In my view, this issue could determine the viability of Trump’s 2024 presidential bid.
Chutkan’s 48-page opinion in United States of America v. Donald J. Trump also rejected the former president’s claims that the First Amendment barred his prosecution by Biden Justice Department special counsel Jack Smith. The case, of course, involves criminal charges of interference in the 2020 election, and I just referred to it by its full formal title because Chutkan pointedly stressed it in asserting that federal criminal cases are brought on behalf of the entire country. Ergo, the Obama appointee reasoned, they raise weightier concerns than private civil actions for which presidents are given immunity — at least, as noted above, for their official actions.
Listeners of our podcast will note that I’ve periodically spotlighted the immunity issue. It’s not that I’ve thought Trump had much chance of prevailing on it. While I don’t agree with all of Judge Chutkan’s reasoning, her bottom line is a sound application of the most important precedents — particularly the aforementioned Fitzgerald case. There, the Supreme Court was deeply divided in granting civil immunity to President Nixon and it strongly suggested the case would have come out the other way had the question been criminal immunity.
No, the immunity issue is critical for Trump because it is appealable pretrial and thus potentially a vehicle for delay. Delay is Trump’s main strategy.
As readers may recall, I am doubtful about Smith’s charges of fraud, obstruction, and civil-rights offenses: (a) I don’t believe that the Supreme Court will sustain a “fraud on the government” charge where the alleged fraud is not financial in nature (and as Dan McLaughlin has repeatedly pointed out — see, e.g., here and here — the Supreme Court in United States v. Gradwell (1917) held that corruption of the elections process is not cognizable fraud under the relevant statute); (b) there are significant questions about whether Trump’s conduct (mainly, relying on bogus legal theories) amounts to corrupt obstruction under the relevant statute (defining the parameters of that statute has deeply divided the D.C. Circuit); and (c) I don’t believe that Trump’s crusade to convince state and federal authorities to invalidate votes he claimed were improperly cast is properly addressed by a 19th century civil-rights statute that was intended to deal with preventing voters from casting ballots (mainly by intimidation).
All that said, though, my reservations are legal. Trials are not won by legal claims, which are argued outside the jury’s presence. Jury trials are won by factual evidence, and a good deal of the evidence against Trump is unsavory — although, I should note, Trump contends he will prove at trial that he did not believe that his stolen-election claims were false, and Judge Chutkan observed that if Smith can’t prove Trump was lying, then Trump will not be convicted. In any event, I expect Chutkan to rule in prosecutor Smith’s favor on the legal matters; if Trump eventually prevails on those, it will be on appeal — after he is convicted by a D.C. jury, which has to be seen as a likely outcome (as I further address below).
Federal law strongly discourages pretrial appeals in criminal cases. The preference is to litigate a case fully in the lower court, with any appellate issues addressed only after conviction and sentence on the entire record. (Generally speaking, there are no appeals if the defendant is acquitted.) Yet there are some issues for which so-called interlocutory appeals are permitted. For example, in Smith’s other federal indictment against Trump, the documents case in Florida, there could be appeals pretrial, and even during the trial, because such appeals are expressly permitted by the statute controlling admissibility of classified information. In fact, although the presiding judge in that case, Trump-appointee Aileen Cannon, has not yet formally abandoned her plan to commence trial on May 20, the classified-documents complications make postponement — perhaps until after the 2024 election — a near certainty.
Interlocutory appeals are also entertained when a defendant’s claim calls into question the propriety of, not just convicting him, but subjecting him to trial in the first place. The best example is double jeopardy, which bars a second prosecution for an offense of which the accused has already been convicted or acquitted. Immunity claims are analogous because, as with double jeopardy, the defendant is arguing that a law or recognized legal privilege makes it improper to conduct a trial against him.
As a result, immunity cases — such as the Supreme Court decisions mentioned above, and the D.C. Circuit decision last Friday in Blassingame — involve appeals of immunity issues taken before the underlying case could be tried.
Trump recognizes that he could very well be convicted in the federal election-interference case. He also knows that recent polling, which showed him leading President Biden in a number of battleground states, also indicated that a material slice of his support would fall away if he were convicted in one or more criminal cases.
Let’s set aside the two state cases (which have problems and seem increasingly unlikely to get to trial in 2024). Of the two federal indictments, I believe the documents case is the stronger one; yet, as noted above, it may not get to trial, and even if it does, Trump probably has a better chance of acquittal in Florida, with a more sympathetic judge and jury pool, than he does in Washington.
Trump wants to have any and all trials postponed until after the election, especially the one in palpably hostile D.C. He calculates that, if he wins the election, or even if another GOP candidate wins, the new Republican Justice Department would drop the federal cases against him — or the new Republican president would pardon him (a possibility that includes a self-pardon if Trump is elected).
Chutkan is well aware of this. That is why she acceded to Smith’s plea for a trial early in 2024. The trial is scheduled to start on March 4. And yes, if you’re keeping score, that’s the day before the Super Tuesday primaries. The judge understands, moreover, that Trump is banking on getting interlocutory appellate review of his immunity claim.
For that reason, she put the immunity issue on the fast track. Although Trump only recently filed many of his more standard pretrial motions, and the prosecutor hasn’t even responded to those yet (meaning Chutkan probably won’t rule on them until January), Chutkan put the potentially appealable immunity and related constitutional claims on a tighter leash. As a result, the parties had to complete briefing by November, then the judge promptly issued a thorough opinion on December 1 (which even manages to cite the Circuit’s Blassingame case, even though it was issued the same day, a few hours earlier).
The ball is now in Trump’s court. It’s possible that he could try to drag things out a bit by moving for reconsideration, but that would be pointless — I imagine it would take about ten seconds for Chutkan to deny such a motion. So given that state of play, Trump’s next move is to appeal to the D.C. Circuit. There are eleven full-time judges on the Circuit, seven appointed by Democrats (four by Obama, three by Biden); there are also five part-time (“senior”) judges, three appointed by Democrats. I am confident that any group of three judges assigned by the Circuit to Trump’s appeal will responsibly expedite its consideration. The high likelihood is that the panel will issue a ruling affirming Chutkan’s decision, and rapidly enough to allow the trial to proceed on schedule, March 4.
At that point, Trump could try to slow things down by asking for a rehearing en banc — meaning by all eleven full-time judges. It is unlikely the Circuit would grant such a request, especially if doing so would delay the trial. Trump’s last gasp, then, would be to seek Supreme Court review.
The high Court should take the case because the issue of presidential immunity in the criminal context is of vital importance, the Court has never decided it, it is going to come up in the Florida case, too, and — given the way federal law-enforcement has been weaponized by politics — it could recur in the not-distant future. (Chutkan’s opinion portrays Trump as uniquely threatening, and he has promised “retribution” if he’s elected. But look, American politics has changed for the worse, and it’s not just Trump: The last ten presidencies have produced three impeachments, one resignation to avoid what would have been another impeachment, additional impeachment inquiries premised on claims of criminal conduct, and one pardon. I hate the new normal, but it is what it is.)
Nevertheless, I believe that the Supremes will want no part of Trump’s appeal. The agreement of just four of the nine justices is sufficient to accept a case for review, but I doubt these “certiorari” votes will be there. Taking the case would thrust the Court into the politics of the 2024 election. The justices will be keen to avoid that. Plus, no doesn’t mean never: The Court could rationalize that it will consider reviewing Trump’s election-interference case again down the road — after the trial and any appeal to the Circuit have been completed, meaning well after the 2024 election is in the rearview mirror.
I’ve run long here, so in separate posts (ideally this week), I’ll address Judge Chutkan’s reasoning on the immunity and related issues, as well as the Circuit’s three opinions in Blassingame, which signal that distinguishing the official from the unofficial acts of a president will continue to be a vexing challenge — including with respect to the two months preceding the Capitol riot.
For now, what matters most is this: It is doubtful that the former president and current GOP front-runner will get the delay he seeks in his election-interference case. He is very likely to be facing a criminal trial in Washington that will run from early March into May 2024 — and mind you, contrary to the situation in Trump’s ongoing New York civil fraud trial, where his attendance is optional, defendants are required to be in attendance throughout their federal criminal trials. Indeed, Trump’s bail conditions undoubtedly require that he make all court appearances.
And let’s say Trump is convicted by the jury in Washington, D.C. — a distinct possibility. While I believe Judge Chutkan would exercise her broad authority to allow him to remain at liberty pending sentencing (usually three months after trial), that is no sure thing.
Just to round out the picture: If Trump were convicted and sentenced to a term of imprisonment (as would be common for someone convicted of one or more serious felonies), the default position of federal law would call for the revocation of bail and an order that he be remanded. This presumption could be overcome only if Chutkan made a finding that Trump’s appeal raised a substantial issue that was likely to result in reversal of his conviction or the reduction of his sentence to a non-prison term.
Naturally, judges do not like to signal to appeals courts that they are worried reversible error has occurred in a trial over which they’ve presided. If Trump is convicted and sentenced to prison, I would not bet on Chutkan’s granting him bail pending appeal. If she were to order him remanded, the former president would have to try to convince the D.C. Circuit to overrule Judge Chutkan and allow him to remain at liberty as the 2024 campaign ensued.
Ay yay yay . . .