New Delhi: A former President’s “exposure to federal criminal liability is essential to fulfilling our constitutional promise of equal justice under the law”. With these words, US district judge Tanya Chutkan threw out Donald Trump’s challenge to his four-count indictment in the case charging him with “criminal conspiracy” to overturn the 2020 Presidential election.
In asserting absolute immunity, Trump “asks not for an opportunity to disprove those allegations, but for a categorical exemption from criminal liability because”, she observed in her 48-page verdict delivered Friday.
“Nothing in American history justifies the absolute immunity defendant (Trump) seeks,” noted Chutkan.
In October, Trump’s legal team moved a motion to dismiss the indictment handed down against him in August, which charged the former president of “unlawfully attempting” to prevent the transfer of power after his loss in 2020.
The motion sought to dismiss the charges against him based on Presidential immunity and constitutional grounds, including protection of his free speech under the Fifth Amendment of the Constitution.
His legal team asked for dismissal as the “indictment is solely based on President Trump’s official acts”.
Chutkan’s judgment rejected Trump’s motion on each count.
“The government of the United States has been emphatically termed a government of laws, and not of men,” she said, quoting a Supreme Court judgment.
She warned that an “obstruction to the execution of the laws would betray public interest,” and allow “one man to determine for himself what is law,” which could mean “first chaos, then tyranny”.
“Federal criminal liability will not impermissibly chill the decision-making of a dutiful chief executive or subject them to endless post-presidency litigation,” she added, dismissing concerns raised on this point by Trump’s legal team.
Chutkan’s judgment was delivered the same day as the verdict by the federal appeals court in Washington, which Friday reportedly held that Trump is not “currently entitled to broad immunity from civil lawsuits” seeking to hold him accountable for the alleged assault on the US Capitol on 6 January, 2021.
The three-judge panel allowed the suits brought by a group of congressional Democrats and veteran Capitol Police officers to move forward. The suit demands civil damages for the harm they have suffered due to the attack.
Before moving the motion to dismiss the indictment charges, Trump’s legal team had in September this year reportedly asked Chutkan to recuse herself from the case because of previous statements she made in two separate Capitol riot sentencing hearings.
In those, Chutkan, had, in connection with other cases, suggested Trump should be prosecuted and imprisoned. In response, the Justice Department filed its objections, along with the transcripts of the remarks to refute the submissions made against her.
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Trump’s indictment charges
In August this year, the federal grand jury indicted Trump on four charges: conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights.
The “unprecedented assault,” it said, was “fuelled by lies that were targeted at obstructing a bedrock function of the US government”.
The indictment read: “Despite having lost” that election, he “was determined to remain in power,” so “for more than two months following election day on 3 November, 2020, the defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won”.
The indictment added that he “knew that [those claims] were false,” but “repeatedly and widely disseminated them anyway — to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election.”
Trump’s arguments and claims
Trump challenged the indictment, claiming it was based on his “public statements and tweets about the federal election and certification”, “communications with the US Department of Justice about investigating elections crimes and possibly appointing a new Acting Attorney General”.
He also cited “communications with state officials about the federal election and the exercise of their official duties with respect to the election,” “communications with the vice-president and members of the Congress about the exercise of their official duties in the election-certification proceedings,” and “organising slates of electors as part of the attempt to convince legislators not to certify the election against the defendant,” while challenging the indictment.
He asserted 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 the US President, so long as he was not both impeached and convicted for those actions.
He contended that criminal prosecution would have a “chilling effect” on the President’s decision-making, and that it could lead to “potential criminal prosecutions” of former Presidents by “local, state, or subsequent federal officials”.
He even said the “generalised descriptions (in the indictment report) fail to properly portray the conduct with which he has been charged”.
Trump also challenged his indictment on the ground that it violated the First Amendment as it “criminalises his speech and, therefore, violates the First Amendment”.
He claimed his statements disputing the outcome of the 2020 election were “core political speech” that addresses a matter of public concern. The indictment, he insisted, was invalid because it “is tailored to violate free-speech rights”.
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Judge Chutkan’s verdict
To Trump’s argument challenging the indictment, Chutkan said 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 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.”
She added: “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.”
As for “lack of constitutional text,” she held, it is not an accident as the framers “explicitly created immunity for other officials”, such as Senators and Representatives, except in case of treason, felony and breach of peace.
The immunity, she noted, extended privilege 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.
However, the US Constitution contains no equivalent protections for the President, she said.
She disagreed with Trump’s argument that silence in the Constitution over the issue meant the immunity of the President was assumed.
“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,” she highlighted.
She even rejected Trump’s view that a President can be criminally prosecuted if he/she has been impeached and convicted by trial in the Senate.
Trump based his argument on the Impeachment Judgement Clause “Under Defendant’s reading, if a President commits a crime that does not fall within that limited category, and so could not be impeached and convicted, the President could never be prosecuted for that crime.”
“Alternatively, if the Congress does not have the opportunity to impeach or convict a sitting president — perhaps because the crime occurred near the end of their term, or is covered up until after the President has left office — the former President similarly could not be prosecuted,” she said.
She added that Trump’s interpretation of the Impeachment Judgement Clause would contravene its plain meaning, original understanding and common sense.
Historical sources cited in support of Trump, too, did not appease the judge, who said: “There is no evidence that any of the Constitution’s drafters or ratifiers intended or understood former Presidents to be criminally immune unless they had been impeached and convicted, much less a widespread consensus that the Impeachment Judgment Clause would have that effect.”
Hence, she held that the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.
“Nothing in the Impeachment Judgment Clause prevents criminal prosecution thereafter,” she asserted.
Presidential immunity and duty
Chuktan undertook a structural analysis for Presidential immunity. She observed that the Supreme Court has cautioned against forms of Presidential liability that “rise to the level of constitutionally forbidden impairment of the executive’s ability to perform its constitutionally mandated functions”.
However, she added, “the prospect of federal criminal liability for a former President does not violate that structural principle, either by imposing unacceptable risks of vexatious litigation or by otherwise chilling the Executive’s decision-making process”.
Rather, she felt that a President who knows that their action may one day be held to criminal account “will be motivated to take greater care” to execute laws faithfully.
Chutkan acknowledged that criminal prosecution can impede a President’s performance. “But none of those burdens would result from the criminal prosecution of a former President, who is no longer performing official duties,” she observed.
Her verdict emphasised the President’s duty, which is to “take care that the laws be faithfully executed” and “does not grant special latitude to violate them”.
To Trump’s argument that his prosecution would subject future presidents to prosecution in countless federal, state, and local jurisdictions across the country, the court held: “Defendant is only charged with federal crimes in this case, so any ruling here will be limited to that context and would not extend to state or local prosecutions, which in any event might run afoul of the Supremacy Clause.”
The Supremacy Clause prohibits state judges and prosecutors from interfering with a President’s official duties.
Moreover, the “robust procedural safeguards attendant to federal criminal prosecutions further reduce the likelihood that former presidents will be unjustly harassed. Prosecutors themselves are constitutionally bound to not abuse their office, which is why courts presume that they have properly discharged their official duties,” she said, brushing aside the concern.
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‘Trump broke the sacred American tradition’
Trump’s prosecution, she ruled, was in the public interest.
“The public has an undisputed interest in promoting respect for the law, deterring crime, protecting itself, and rehabilitating offenders. All of those interests would be thwarted by granting former presidents absolute criminal immunity,” she noted.
In this case, Trump broke the sacred American tradition of peacefully transitioning Presidential power, ushered in by its first former President, George Washington, she said.
Trump’s submission that former presidents cannot face federal criminal charges for acts they took in office was refuted by the judge even on historical grounds.
“In any event, the defendant’s reasoning turns the relevant historical analysis on its head,” she said.
Chutkan referred to the Watergate scandal, in the aftermath of which former president Gerald Ford granted ex-president Richard Nixon a “full, free, and absolute pardon for all offences against the United States which he, committed or may have committed or taken part in, while in office.”
“Ford’s pardon and Nixon’s acceptance arose from the desire to prevent the former president’s potential criminal prosecution, and both specifically refer to that possibility — without which the pardon would have been largely unnecessary,” the judge said.
“Defendant’s view of his own immunity thus stands at odds with that of his predecessors in the Oval Office,” she added.
To Trump’s argument about violation of the First Amendment, the judge, said, “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.”
“Many long-established’ criminal laws permissibly criminalise speech…that is intended to induce or commence illegal activities, such as fraud, bribery, perjury, extortion, threats, incitement, solicitation, and blackmail,” she said.
Chutkan further dismissed Trump’s claim that his prosecution was a violation of double jeopardy since he was acquitted in the impeachment proceedings.
“The indictment here does not violate double jeopardy principles,” she said.
“First, impeachment threatens only ‘removal from Office, and disqualification to hold and enjoy any Office of honour, trust or profit under the United States. The impeachment proceedings and this prosecution, therefore, did not ‘twice put’ defendant ‘in jeopardy of life or limb’ for the ‘same offence’,” she held.
(Edited by Richa Mishra)
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