Republished with permission from Lucian K. Truscott IV
Well, the history books are going to have to devote at least a chapter to what happened December 1st to Donald Trump. Trump’s motion to claim presidential immunity from civil suits was rejected by the D.C. Court of Appeals, and his motion to dismiss the federal charges against him brought by Special Counsel Jack Smith was denied too.
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 call to arms on the Ellipse. But in another civil suit Trump joined after he lost the election, Trump claimed he was acting as candidate for president, not in his official capacity as president, when he joined the suit by Texas and other states to overturn the results of the election. 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.”
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 last night 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 of 2021 stood up to Trump and rejected challenges to the 2020 election he had filed in five battleground states Biden had 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.
Big day last Friday. Lots at stake, like the survival of our democracy. Stay tuned.
Lucian K. Truscott IV
Lucian K. Truscott IV, a graduate of West Point, has had a 50-year career as a journalist, novelist and screenwriter. He has covered stories such as Watergate, the Stonewall riots and wars in Lebanon, Iraq and Afghanistan. He is also the author of five bestselling novels and several unsuccessful motion pictures. He has three children, lives in rural Pennsylvania and spends his time Worrying About the State of Our Nation and madly scribbling in a so-far fruitless attempt to Make Things Better.