Judge Tanya Chutkan Had to Tell Trump That, “There is no ‘Presidential Immunity’ Clause”

Less than twelve hours after the DC Circuit ruled that an office-seeker does not enjoy presidential immunity from civil suit, Judge Tanya Chutkan issued her order ruling that Trump does not enjoy presidential immunity for crimes committed while president.

Her opinion can be summed up in one line.

[T]he United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass.

The timing of Chutkan’s decision is almost certainly not accidental. The key issue in this opinion, absolute immunity, has been fully briefed (as Trump noted on November 1 when he asked to stay all other proceedings until this was resolved) since October 26.

Chutkan said she was ruling now because the Supreme Court requires immunity to be resolved as early as possible.

Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for selective and vindictive prosecution, ECF No. 116. The court will address those motions separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the Constitutional Motion—in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).

She did not source that cite to Trump’s request for a stay, nor did she say she was also ruling on Trump’s motion to dismiss on Constitutional grounds, which includes a Double Jeopardy claim, because Molly Gaston asked her to,

But by ruling as she did (without a hearing), she simply mooted Trump’s request to stay any further proceedings with a minute order.

MINUTE ORDER as to DONALD J. TRUMP: In light of the court’s [172] Order denying Defendant’s [74] Motion to Dismiss Based on Presidential Immunity; Defendant’s [128] Motion to Stay Case Pending Immunity Determination is hereby DENIED as moot.

This puts the onus on Trump to appeal, which he reportedly will (though he has dilly-dallied on some of these motions, so we’ll see how much time he kills in the process).

It seems clear that Chutkan waited for Blassingame, the civil immunity opinion, because she found a way to cite it twice and still release her own opinion on the same day.

But it also seems likely that Judge Chutkan and her clerks simply reviewed that opinion to make sure nothing wildly conflicted with her already completed opinion, because her opinion doesn’t incorporate details of the absolute immunity argument — such as the significance of the fact that five of six co-conspirators described in the indictment (everyone but Jeffrey Clark) is a private citizen, which would be important if the DC Circuit applied any of their civil immunity test to the criminal context.

Indeed, one of Chutkan’s citations to Blassingame effectively admitted she didn’t get into its test — whether Trump was acting in his official role when he did the things alleged in the indictment.

Similarly, the court expresses no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within the outer perimeter of the President’s official” responsibility. Immunity Motion at 21 (formatting modified). Even if the court were to accept that assertion, it could not grant Defendant immunity here without resolving several separate and disputed constitutional questions of first impression, including: whether the President’s duty to “take Care that the Laws be faithfully executed” includes within its “outer perimeter” at least five different forms of indicted conduct;5 whether inquiring into the President’s purpose for undertaking each form of that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents do not possess absolute federal criminal immunity for any acts committed while in office, however, the court need not reach those additional constitutional issues, and it expresses no opinion on them.

5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).

Instead, Chutkan argued — in language that likely preceded the Blassingame opinion, in a section on whether holding a former President criminally accountable will pose some of the harms to the presidency and government that suing a current or former President might — that no matter what the analysis is for civil immunity, criminal immunity is different.

The rationale for immunizing a President’s controversial decisions from civil liability does not extend to sheltering his criminality.


For all these reasons, the constitutional consequences of federal criminal liability differ sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald identified as warranting the exercise of jurisdiction: maintaining the separation of powers and vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54. Exempting former Presidents from the ordinary operation of the criminal justice system, on the other hand, would undermine the foundation of the rule of law that our first former President described: “Respect for its authority, compliance with its laws, [and] acquiescence in its measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s Farewell Address at 13. Consequently, the constitutional structure of our government does not require absolute federal criminal immunity for former Presidents.

The analysis has to be different of course. If you can be impeached for using your office to extort campaign assistance, it should not be the case that you cannot, though, be criminally charged for that extortion.

This is an opinion about whether impeachment provides the sole recourse for holding a former President accountable.

Judge Chutkan provides a very neat solution to that problem, by noting that impeachment is just one of two ways to remove a President who has misused his office.

[T]here is another way, besides impeachment and conviction, for a President to be removed from office and thus subjected to “the ordinary course of law,” Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without reelection, the expiration of that term ends a Presidency as surely as impeachment and conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit Justice) (“[T]he 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. [my emphasis]

Because voters saw fit to remove Trump, Chutkan held, he can now be charged criminally.

Chutkan punts the other questions upstairs to the DC Circuit and from there to SCOTUS.

And while I think Chutkan’s analysis of the two impeachment issues — immunity and double jeopardy — is sound, I do worry that her treatment of several other issues — the things Trump included in his motion to dismiss on Constitutional grounds besides double jeopardy — got short shrift as a result.

Those issues have only been briefed since November 22. She and her clerks probably wrote that part of the opinion over Thanksgiving weekend. And far less of her opinion addressed those issues — seven pages for the First Amendment issues and four for matters of fair notice — than addressed the impeachment issue:

Background (what the indictment really charges) 1

Standard 5

Executive Immunity 6

    • Text of Constitution 6
    • Structure (concerns of public policy, addressing Fitzgerald) 14
      • Burdens on the Presidency 15-20
      • Public Interest 20-25
    • History 25-29
    • Summary 29-31

First Amendment 31

    • Core political speech of public concern 33
    • Statements advocating govt to act 35
    • Statements on 2020 Election 37

Double Jeopardy 38

Due Process 44 (4 pages)

Importantly, while she noted at the outset of her opinion (in the five page “background” section) that Trump totally misrepresented the indictment against him, she didn’t lay out how, in addition to speech-related actions charged as conspiracies, there are some actions that are more obviously fraud, such as the effort to counterfeit elector certificates or the knowingly false representations about Mike Pence’s intent. Trump’s misrepresentation of the indictment is really egregious, but Chutkan barely explains why that’s a problem in this opinion.

Both the First Amendment issues and the notice issues (particularly on 18 USC 1512, though there’s readily available language on 18 USC 241 charge in the Douglass Mackey case) have been addressed repeatedly in other January 6 cases. Since those cases will be appealed on a more leisurely pace than this one, I worry that the issues are not fully addressed. And those are the issues about which Clarence Thomas and Sammy Alito were most likely to intervene in any case.

This is an opinion about holding a former President accountable before he becomes President again. The danger is real: On the same day two courts ruled that Trump didn’t have absolute immunity for his conduct while he was President, his Georgia lawyer argued that if he wins in 2024, he can’t be tried on that case until 2029.

But for now, the matter has been sent to the DC Circuit to deal with.

63 replies
  1. sohelpmedog says:

    “The danger is real: On the same day two courts ruled that Trump didn’t have absolute immunity for his conduct while he was President, his Georgia lawyer argued that if he wins in 2024, he can’t be tried on that case until 2029.”
    All the more reason to try that case in time for it to be finished before January 20, 2025.

    As for all the other issues, except for Thomas and Alito, I don’t think the other justices want anything more to do with Trump and are not likely to vote to grant cert., so the Court of Appeals will likely be the final arbiters here.

    • Ebenezer Scrooge says:

      I certainly agree with sohelpmedog’s second paragraph. The other four conservative justices realize that the Supreme Court will become irrelevant in Trump’s second term. Some of them are committed to the rule of (Confederate/Gilded Era) law; some of them want to preserve the institutional prerogatives of the Supreme Court. They will do nothing to help Trump.

      • P J Evans says:

        I”m pretty sure that the more “conservative” members of the court don’t want a Democratic president to have that much immunity. (Any decision would also apply to Biden.)

    • 0Alexander Platt0 says:

      Are you really hoping that the state of Georgia would incarcerate the nation’s president-elect? As a good thing?

      • sohelpmedog says:

        No. We don’t need even more craziness. It would be best if the case was tried and concluded before the election. And if Trump is the candidate, and despite a guilty verdict, wins, then the law should take it’s course, unless you want to place him above the law. I try not to waste time hoping.

      • Yankee in TX says:

        No. I’d rather that he lived to 99, so devoted to public service that people would say that his ex-presidency was so much better than his term in office – but that ain’t happen’. To not treat him this way would be encourage him to further raping and pillaging and add murder, mayhem and torture while leading a mob with torches and pitchforks against his foes. If (god forbid) he wins, the USSS will free him on 1/20/25 to take the oath of office and continue his spree of plundering and revenge.

        • John B.*^ says:

          If he relinquishes the presidency, which, is not a given…

          [Thanks for updating your username to meet the 8 letter minimum. CAVEAT: This username may need to change if the anticipated coding changes don’t permit use of asterisks and carets — be prepared to replace those non-letter/non-numeric characters with acceptable alternatives. /~Rayne]

          • Yankee in TX says:

            Hah! Fat chance! Like Caesar, Trump’s occupying the office was the only thing that was going to prevent criminal charges. I was not that surprised to see Trump crossing the Rubicon.

  2. P’villain says:

    I’m less worried about how SCOTUS would rule than by how much time the inevitable appeals of these claims will eat up before trial can begin.

    • Ebenezer Scrooge says:

      Most claims are not appealable until after the trial. IIRC, only the immunity and double jeopardy claims are subject to interlocutory appeal. And they’re teed up now for the DC Circuit, although Trump’s lawyers will doubtless delay starting the appellate process until the last second.

      • P’villain says:

        Immunity/double jeopardy are what I’m referring to. DC Circuit, en banc review, petition for certiorari, plus emergency stay motions all around…

  3. Peterr says:

    That one line summary is great, and even better when you see how she sets it up:

    The Constitution’s text, structure, and history do not support [the defense’s] contention. No court—or any other branch of government—has ever accepted it. And this court will not so 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.

    This isn’t just the Constitution’s conclusion says Chutkan.
    This isn’t just the Judiciary’s conclusion.
    This isn’t just my conclusion.
    It’s the conclusion of everyone who has ever looked at this argument that doesn’t want a get-out-of-jail-free pass.

    And then she turns the screws:

    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.

    Investigations are not prohibited.
    Indictments are not prohibited.
    Prosecutions are not prohibited.
    Convictions are not prohibited.
    Punishments are not prohibited.

    If you commit crimes while in office, people will gather evidence of those crimes.
    If you commit crimes while in office, grand juries will look at that evidence and prosecutors will seek charges.
    If you commit crimes while in office, those charges will be prosecuted.
    If you commit crimes while in office, juries will weigh the evidence and the law and render judgment.
    If you commit crimes while in office, judges will weigh the law and the circumstances, and render punishment.

    If you commit crimes while in office, you have a lot to look forward to, just like everyone else anywhere else who commits crimes.
    If you commit crimes while in office, you are not special.
    If you commit crimes while in office, all you are is just another criminal.

    [Kind of reminds me of this. But I digress.]

    Prediction: when (not if) this goes to the Circuit Court and then to SCOTUS, these last two lines will feature prominently in someone’s opinion. And if Alito and Thomas want to be the first to rule that a former president does have a get-out-of-jail free pass, Chutkan is laying down a marker to make it damned difficult for them to do so.

    In my professional judgment, Judge Tayna Chutkan has a real way with words. Makes me want to take another look at my sermon for tomorrow, and maybe up my own game.

    Edited to correct the spelling of Judge Chutkan’s name.

    Mea culpa, mea culpa . . .

    • rattlemullet says:

      Eloquently and succinctly stated, I would add if convicted either by Federal or State Law, serve the time as prescribed by Federal or State Statute.

      In my opinion “Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors” by any Federal or State Law, prior to or post presidency, should preclude any person from being President or again being President, at least until time served has been completed.

      • Ladyfair says:

        It should preclude any person from holding any federal or state elected or appointed office, including being President or Vice President, from ever holding that office – for the rest of that person’s life.

          • John Thomas says:

            A little O/T, but I expressed similar concerns in another forum about due process regarding Santos’ expulsion from the House prior to any trial or determination of guilt.

            A reply came in the form of Article I Section 5 Clause 2 Rules:
            “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.”

            There is no mention of trials or determination of guilt as a prerequisite for expulsion.

            IANAL, but doesn’t Section 3 of the 14th Amendment similarly address misconduct by the Chief Executive without mentioning a trial or determination of guilt as a prerequisite for disqualification?

            District Judge Sarah B. Wallace found that Trump did in fact “engage in insurrection” on Jan. 6, but said that Section 3 does not specifically refer to the presidency, as it does members of the U.S. Senate or House of Representatives. Instead, the clause refers to “elector of President and Vice President,” along with civil and military offices.

            Am I being too simplistic maintaining that Chief Executive is a civil office and Commander in Chief is a military office?

            • earlofhuntingdon says:

              Civilian control of the American federal military was an important element in the Founders’ design. Consequently, both roles/offices – the presidency and c-in-c – are intentionally civilian. An American president, by design, is and cannot be a serving member of the US military.

    • Purple Martin says:

      Peterr, Impressive. With the inexorable, menacing, DA-dum DA-dum DA-dum rhythm of the Jaws theme. With the added advantage of relentless accuracy.

      [but, Chutkan]

    • David F. Snyder says:

      In my professional judgment, Judge Tayna Chutkan has a real way with words.

      I completely agree. Great writing.

  4. dael Escher says:

    The OLC rule of Presidential immunity has never been challenged in court?!?
    While they were in office or maybe … when ever?!?
    Put Arguments here:

    It would take a lot of hutzpah to challenge.

    [Thanks for updating your username to meet the 8 letter minimum. /~Rayne]

    • matt fischer says:

      The Constitution does not expressly point to temporary immunity from prosecution for sitting presidents, but it seems unlikely to be tested in court so long as that OLC opinion remains DOJ policy.

      • matt fischer says:

        … unless Trump is reelected.

        He would argue, and his DOJ would no doubt concur, that any ongoing judicial proceedings against him undermine the executive branch’s ability to perform its constitutional functions.

      • earlofhuntingdon says:

        You’ve described an intra-branch dispute that the judiciary has not been asked to opine on. In a dispute within the executive branch, the sitting president will win. All the more so if it’s Trump, who will staff the DoJ, the Senate willing, with only the best men.

        • matt fischer says:

          I had an inter-branch dispute in mind when I wrote the second comment.

          If Trump-as-a-sitting-president were able to coerce attempted dismissals and/or delays of ongoing criminal cases against him, it might trigger judiciary review of the matter.

          For example, under Rule 48 FRCP federal prosecutors may not unilaterally dismiss a case without “Leave of Court” (see Judge Sullivan re: United States v. Flynn), which might provide such an opportunity.

        • Peterr says:

          When the Justice Department obtained a subpoena for Nixon’s tapes in the Watergate investigation, SCOTUS ultimately ruled 8-0 that Nixon had to give the tapes to the Watergate prosecutor in the DOJ.

          To the extent that this was an intra-branch dispute (Pres vs DOJ prosecutor), SCOTUS did not duck, and did not give the President a pass. Nixon read the ruling, swallowed hard, and decided it was time to retire to California.

          At a minimum, US v Nixon set the precedent that a sitting president could be compelled by his own Justice Department to provide evidence in a criminal case. More broadly, it said that even a sitting president is not above the law.

          • earlofhuntingdon says:

            Donald Trump 2 will not have to suffer under the relative independence and professionalism of Dick Nixon’s DoJ. Jeff Clark is likely to be among his most traditional appointments. The Heritage Foundation’s Project 2025 will see to that – if the Dems lose the Senate. If not, Trump will do his usual schtick with “interim” appointments.

          • dael Escher says:

            They were still looking into Nixon when the OLC rule went into effect. “The memo was issued on September 24, 1973, during the Watergate scandal” Looks like it was all hands on deck to defend the residink (sic). Though they can be impeached. Where was Billy Barr then? mmmm Wikipedia- ” During his law school years he was an analyst in the Intelligence Directorate division from 1973 to 1975, and then transitioning to an assistant in the Office of Legislative Counsel and an agency liaison to Congress from 1975 to 1977.” These were CIA positions. Pres. Carter decided not to keep GHWBush as head of CIA in 1977.

            • earlofhuntingdon says:

              Oh, yes. Bill Barr was one of those made men before he went to an Ivy, in his case, Columbia. He also stayed there for his M.A., which was just long enough to coincide with the ending of the Vietnam era draft. Then he went straight to DC and the CIA.

              Like J. Edgar Hoover, he went to GW law school, an odd choice at the time for a guy with two Ivy League degrees. But it allowed him to study part-time. He graduated in the usual four years. Given his immediate post-Vietnam era workload and the long commute from Langley to Foggy Bottom, either his work ethic or his status was already special.

  5. Bay State Librul says:

    Alexa, “What is the difference between Judge Chutkan and Judge Cannon?”
    Come rain or shine, we are lucky that Judge Chutkan sits on the bench.

  6. Amicus12 says:

    “Defendant is charged with usurping the reins of government.” Slip op. at 25. That to me is the crux of the matter. I do wish that the decision had been much more tailored to the charges and specifics alleged rather than a mostly generalized discourse. One can theorize hard cases concerning an alleged immunity: this isn’t one of them.

    That said, DOJ can seek to defend the decision on any ground and hopefully it will do the heavy lifting of showing how none of Trump’s arguments can be reconciled with the facts and crimes alleged. That theme flows softly through the decision and DOJ is more than capable of giving it full volume.

    Trump’s attorneys have a modest dilemma. To the extent they delay filing a notice of appeal and a motion to stay the proceedings below pending appeal they undermine the credibility of their own claim for extraordinary relief. If facing criminal proceedings is a harm, then it behooves them to act as soon as possible. We’ll see.

    The appellate stay motion and DOJ’s response are critical path items. Why any jurist would see legitimate grounds to stay this is beyond me.

    • bmaz says:

      “I do wish that the decision had been much more tailored to the charges and specifics alleged rather than a mostly generalized discourse. One can theorize hard cases concerning an alleged immunity: this isn’t one of them.”

      All of your comment, but especially this.

    • emptywheel says:

      When I woke up this morning (early, because I couldn’t sleep), this was going to be twice as long because I believe there’s a reason it is as untethered as it is.

      At some point I’ll write that up. But one thing I can’t get out of my mind is that Chutkan wrote, “Defendant, along with at least six co-conspirators,” and then I looked and sure enough it read, “The Defendant enlisted co-conspirators to assist him in his criminal efforts to overturn the legitimate results of the 2020 presidential election and retain power. Among these were:”

      That’s just one thing I can’t get out of my mind. So I got up early.

      • Amicus12 says:

        On the waking up I can empathize. I find that days when I get in a very long walk helps with that (sometimes).

        Very curious about your take on why she structured her decision as she did. She clearly gave DOJ, the D.C. Circuit, and (gulp) the Supreme Court space to utilize. But that could be a blessing or a curse.

        • emptywheel says:

          Sadly my walking is limited these days, especially given the rare ice day here in Eire, given the boot and recovering broken foot.

          I agree there’s too much space. Even giving it to DC Circuit is a gamble. Sure Katsas is on the record with a reasonable take. But Neomi Rao?

          My theory is that both Chutkan and DOJ–and increasingly Trump–know this applies to more than what we can see.

              • Amicus12 says:

                Forgot about your foot – hopefully all goes well.

                Your comment is sobering. I need to process it. The indictment in the documents case got my imagination going, that’s for sure.

                And yes, the panel here may make all the difference.

              • David F. Snyder says:

                While I indeed share a concern about this decision leaving openings for a delay, I do think it may be wise of Chutkan (in the long run) to have left a more detailed discussion of the remaining issues to the SC’s response for several reasons (jurists shouldn’t be making arguments for either the prosecution or the defense (looking at you, Cannon)). But Trump is strong at finding loopholes when folks speak in generalities.

                Also, Trump doesn’t necessarily win and probably won’t (how many PotUS incumbents lost re-election only to win re-election later? One.) But I’m not taking it as a given that he loses; action and small nudges are needed to educate the American voter about what is at stake here.

      • earlofhuntingdon says:

        Sotto voce: “And he’ll do it again for as long as it takes to regain and keep the White House, with more violence and countless more lawsuits. Or, we could sort out these criminal complaints before the next election.”

    • Peterr says:

      I do wish that the decision had been much more tailored to the charges and specifics alleged rather than a mostly generalized discourse. One can theorize hard cases concerning an alleged immunity: this isn’t one of them.

      Take it up with Trump’s lawyers, then, not Judge Chutkan.

      Trump’s counsel made a generalized claim: Trump, as a former president, has complete immunity for his acts while president. No ifs, no ands, no buts.

      Against that, Chutkan replied with an opinion tailored to the generalized claims made by Trump: No, you don’t — no former president has any such immunity.

      As a judge ought to do, she replied to the claims made before her. Had Trump made a claim that was more tailored to the charges, the onus would have been on her to tailor her ruling more narrowly. But as the judge, she has to rule on the arguments before her made by the parties, not the arguments anyone else might wish her to address.

      • 2Cats2Furious says:

        Also, let’s not forget that Judge Chutkan is dealing with this “absolute Presidential immunity” claim at the Motion to Dismiss stage, where Defendant is supposed to accept all the facts alleged in the indictment as true. As such, merely addressing the facts of the indictment, without more, isn’t really essential to Chutkan’s opinion that this criminal case is distinguishable from Nixon v Fitzgerald, which concerned only civil liability. And even that was limited acts within the “outer perimeter” of Presidential duties, which is why Blassingame is significant.

        Let’s say that Trump won a second term (*gags*) and enters into a secret agreement with China to provide certain National Defense Information (which he doesn’t have the power to unilaterally declassify) in exchange for China’s agreement not to attack Taiwan for as long as he is President. That would fall within the “outer perimeters” of his duties on foreign policy, but would still be a crime, no?

        Now let’s say that he enters into the same agreement, but with the added condition that China deposits $10 billion into a Swiss bank account for him. Definitely a crime, right?

        These are the sort of hypotheticals I would expect to see the DC COA panel to ask at a hearing. So far, Trump’s position is that he couldn’t be criminally charged for such acts, even if they were not discovered until he was out of office. The actual crimes charged don’t really matter, because of the procedural protections offered to criminal defendants.

      • David F. Snyder says:

        Well said, Peter. I read this after posting my comment above (“Jurists shouldn’t be making [or anticipating] arguments for either the prosecution or the defense”).

        • SteveBev says:

          FWIW Both Peterr’s remarks and yours accorded with my impression of why Chutkan crafted the opinion in the way that she did.

          She made particular note of Trump’s failure to adequately address the factual matrix as set out in the indictment, and later made a particular point of stating that she was dealing with an issue raised only in the Trump reply notwithstanding that the late raising of a novel point was of questionable propriety.

          Chutkan, in various motions and arguments from Trump, has had to contend with bad faith representations of law and fact and other instances of ambush advocacy. Her method of dealing with it, is to dryly note such matters with a minimum of fuss while focusing her rulings on the absolute core of the issue at hand.
          I think that’s what she attempted here.

          I look forward to seeing/ reading EW, Amicus, Bmaz and Earl expand on their argument that the opinion is insufficiently tethered to the indictment – because I have a sense of having missed something they see and understand.

          I come here to learn.

          • Amicus12 says:

            A way, perhaps the traditional way, for the Court to handle his alleged immunity defense was to write only what was necessary to decide his motion, knowing an adverse decision will be appealed pre-trial.

            She could have found, as she did, that his motion does not address the facts of the charges laid out in the indictment. By itself, that is a sufficient basis for denying the motion. Claims of immunity not tethered to the indictment are irrelevant.
            Trump’s motion effectively argues that he is immune from having engaged in lawful conduct. That sounds silly, and it is, but that’s what he did. He argued that he was obligated to take care that the election was fairly decided and to otherwise exercise his First Amendment rights. It’s a nice speech, but it’s not the allegations he must defend against.

            His task was to convince the Court that he possessed immunity against the criminal conduct of attempting to stop the peaceful transfer of the Presidency. And he is alleged to have done so by “exploiting” the violence that occurred at the Capitol. To state the proposition is to see its absurdity.

            The Court could have additionally gone and engaged in the Constitutional and policy analysis it laid out and found that even measuring his alleged immunity against the charges of indictment, whatever immunity inheres in the office of the President, it cannot be that.

            It seems to me that the above would be bulletproof. Now the Judge is smart. If I know this, she knows this as well. She chose to write an expansive decision. We can only speculate why that is so.

            • SteveBev says:

              Thanks for elaborating your thinking. It was very clear and helpful

              I think I understand much better now.

              I had formed the impression when reading the ruling that Chutkan had framed the constitutional analysis in a fairly focused way, along the lines you set out in the 4th paragraph; but it’s now clearer to my that my inclination to have matters explained to me, led me to imagine she had done no more than was necessary, whereas the opinion has gone further.

              I appreciate she could have decided the matter in the way you described in paragraphs 1,2and 3, avoiding dealing with the constitutional questions at all, except in the most narrow technical sense. But, surely she had a responsibility to frame the constitutional issues, given what lies ahead? Granted Trump has raised constitutional claims in the most contorted fashion. And he is certainly going to repeat his established patterns during interlocutory appeals and again at trial.

              Isn’t she setting out, in advance, what she asserts are the limits of arguments he will be entitled and permitted to make in the future?

    • WilliamOckham says:


      I know I’m disagreeing with a bunch of people I respect and who know more about the law than I do. Gonna do it anyway because I believe that the most important thing that Judge Chutkan accomplished is this decision was the “mostly generalized discourse”. Trump’s claim of absolute immunity wasn’t just some SovCit level bullshit motion. He’s asking for the right to be a dictator and Chutkan gets that. And every appellate judge and Supreme Court Justice knows this too. They’re going to do whatever they’re going to do based on whether or not they desire Trump to be a dictator.

      Trump deserves the same due process that pro se SovCit defendants get and nothing more. The DC Circuit and the SC have demonstrated that they can move swiftly when necessary. I don’t understand why folks here think that playing small ball against Trump is a good idea.

      • Peterr says:


        She went after Trump’s big claim, and made it clear how wild and outrageous a claim it is. That’s what I was trying to make clear in my expansion of her concise language.

  7. Badger Robert says:

    Trump has been causing the Republicans to lose elections since 2018. There’s no reason to think that has ended. And its probable that some part of the Republican system knows it.
    Thanks to Ms. Wheeler for another superb post.

  8. billtheXVIII says:

    Thank you again for your detailed analysis here. I’m curious as to the big picture too – do you think Chutkan can get her case tried in the next year ?

    • dopefish says:

      I’m certainly not a lawyer, but the impression I’ve formed is that Trump’s best chance to delay the case involves interlocutory appeals (such as this “presidential immunity” gambit) because everything else is under Judge Chutkan’s control and she has been pretty resistant to Trump’s attempts to delay the trial schedule.

      It currently seems likely that the DC Court of Appeals would handle Trump’s interlocutory appeals as fast as possible. But can it happen fast enough to stick to the current trial schedule?

      And then will the Supreme Court give cert to Trump’s appeal and cause a definite delay (that would be extremely controversial), or will they just let things stand? Even with its current right-wing composition, I expect the latter. Carrying water for Trump would further erode any remaining perception of the Supreme Court’s legitimacy among a big chunk of the U.S. population, I doubt they will go there.

      • brucefan says:

        Does the unlimited breadth of the immunity motion enhance the position that the motion is frivolous? Does that issue come up if/when Judge Chutkan considers Trump’s motion to stay the proceeding?

  9. Franktoo says:

    If Trump is convinced of any criminal charges before January 1, 2025, the Democrats could have a slam dunk case for impeaching Trump on January 20, 2025. If you’ve got an American jury that has found Trump guilty of crimes beyond a reasonable doubt (a tougher standard than for impeachment) and the record from the trial, what more does one need? Well, you do need “high crimes”. The Republicans are about to try to impeach Joe for his actions as Vice President and possibly even when out of office

    • Ginevra diBenci says:

      That’s a pretty big “if.”

      You also need a Democratic majority in the House. And probably a Dem supermajority in the Senate, unless you want yet another acquittal. Remember who’s there (Graham, Vance, Lee, “Coach” and Markwayne Mullins) and think this through.

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