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Federal Judge Rejects Trump’s Attempt To Dismiss 2020 Election Subversion Case

In stinging opinion, judge Tanya Chutkan rejects idea that being commander in chief confers lifelong ‘get-out-of-jail-free’ pass

Former US president Donald Trump at a campaign rally in Hialeah, Florida, on 8 November 2023. ,Octavio Jones/Reuters

A federal judge on Friday rejected Donald Trump’s attempt to dismiss his federal criminal case over his efforts to overturn the 2020 election results, ruling that he enjoyed no immunity from prosecution simply because it was based on actions he took when he was still president.

The order by the presiding US district judge Tanya Chutkan simultaneously denied two of Trump’s motions to dismiss – on presidential immunity grounds and constitutional grounds – setting the stage for Trump to appeal to the DC circuit and ultimately the US supreme court.

“The court cannot conclude that our constitution cloaks former presidents with absolute immunity for any federal crimes they committed while in office,” Chutkan wrote. “Nothing in the constitution’s text or allocation of government powers requires exempting former presidents.”

“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,” Chutkan’s 48-page opinion added.

Trump’s lawyers had always expected to lose their initial attempt to toss the charges, which is scheduled for trial in federal district court in Washington next March, and to use the appeals process as their final strategy to delay the case as long as possible.

The former president has made it no secret that his strategy for all his impending cases is to delay, ideally beyond the 2024 election in November, in the hopes that winning re-election could enable him to potentially pardon himself or direct his attorney general to drop the charges.

Trump’s lawyers filed their motions to dismiss in October, advancing a sweeping and unprecedented interpretation of executive power that argued former presidents could not be held criminally accountable for actions undertaken while in office.

The filing contended that all of Trump’s attempts to reverse his 2020 election defeat in the indictment, from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors, were in his capacity as president and therefore protected.

At the heart of the Trump legal team’s filing was the extraordinary contention that not only was Trump entitled to absolute presidential immunity, but that the immunity applied regardless of Trump’s intent in engaging in the conduct described in the indictment.

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The judge emphatically rejected the presidential immunity arguments in the opinion accompanying her order, writing that neither the US constitution nor legal precedent supported such an extraordinary extension of post-presidential power.

“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 wrote. “Former presidents enjoy no special conditions on their federal criminal liability.”

The judge appeared to take particular umbrage at the Trump lawyers’ claim that it was unconstitutional to charge Trump just because no other former presidents before him had been charged, writing that while his case was unprecedented, so too were the crimes for which he has been charged.

“The supreme court has never immunized presidents – much less former presidents – from judicial process merely because it was the first time that process had been necessary,” Chutkan wrote, invoking US history and the pardon conferred to Richard Nixon after the Watergate scandal

The presidential pardon to Nixon was granted and accepted precisely to prevent the possibility of criminal prosecution over Watergate, the opinion said – without which, there would have been no need for a pardon in the first place.

The judge noted, however, that she was not expressing an opinion on an adjacent argument Trump had raised about whether his actions related to January 6 could be prosecuted because they fell within the so-called “outer perimeter” of his duties as president.

Chutkan’s denial came hours after the DC circuit also rejected Trump’s attempt to use a similar presidential immunity argument to protect himself from several civil lawsuits seeking to hold him accountable for inciting the violence that took place during the January 6 Capitol attack.

In a statement, a Trump spokesperson attacked the order: “Radical Democrats, under the direction of crooked Joe Biden, continue to try and destroy bedrock constitutional principles and set dangerous precedents that would cripple future presidential administrations and our country as a whole, in their desperate effort to interfere in the 2024 presidential election.”

Hugo Lowell is a reporter in the Washington bureau of the Guardian covering Donald Trump and the Justice Department. Twitter @hugolowell

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