In their recent motions in the coup plot case in DC before Judge Chutkan, Trump’s lawyers made the argument that not only was Trump above the law when he was president but that after he left office he was still above the law. Trump’s attorneys argued that Trump had and still has presidential immunity.
JUDGE CHUTKAN SMACKED THOSE IMMUNITY ARGUMENTS DOWN. And in another appeal Trump’s lawyers brought claiming presidential immunity from law suits for injury people suffered as a result of Trump’s words and actions leading up to the insurrection on January 6th, that appeals court also smacked down Trump’s immunity arguments.
What these decisions are underscoring are important ground rules for democracy. We still live in a democracy so far. The president is not above the law and after being president he becomes a regular citizen without the powers and protections of the presidency. A king or dictator is free to do whatever he wants. In dictatorships the dictator is not only above the law, he IS the law.
But I want to warn everyone who is reading this post that massive change is coming if Trump wins re-election. I am not Chicken Little telling you the sky is falling.
The sky WILL fall if Trump gets re-elected.
One of the biggest tests for our country in the battle between democracy and dictatorship will be determined by the Supreme Court – not in their ruling but in the timing of their decision.
Read on to learn why.
WHAT WE LEARN FROM THE ARGUMENTS TRUMP’S LAWYERS MADE TO JUDGE CHUTKAN
Trump’s arguments for avoiding consequences in his criminal case before Judge Chutkan (this is the one where Jack Smith indicted him for trying to overturn the election he lost to Biden) rest on some pretty sheisty stuff, (as recently expelled House member George Santos would say).
Trump’s lawyers argue 3 key issues:
- Trump should not have to face criminal prosecution for crimes he committed while president because of Presidential immunity and that even after he left office that presidential immunity should shield him from prosecution for whatever he did or said when he was president.
- Trump already faced an impeachment for trying to stay in power after losing an election and that impeachment failed so he should get a pass on facing a possible criminal conviction based on the same facts.
- The First Amendment should protect Trump from being prosecuted for words he said on the Ellipse and in other places about the election being stolen when it was not or that his followers should “fight like hell” if they want to have a country and more. His speech should be protected speech and not used against him to prove he was engaged in a plot to stay in power as president after losing to Biden.
Judge Chutkan wrote a 48 page response that she hopes will convince the appellate court (probably will) and the Supreme Court (we will discuss this in a minute).
ISSUE ONE
Here is Judge Chutkan’s response to Trump’s first issue.
While the Justice Department has long maintained a policy that sitting presidents cannot be charged, Mr. Trump’s bid to claim complete immunity from criminal prosecution was a remarkable attempt to extend the protections afforded to the presidency in his favor.
Just as brazen was the way in which his immunity motion sought to flip the script of the conspiracy case filed against him in August by Mr. Smith. The former president’s lawyers essentially claimed that all the steps he took to subvert the election he lost to President Biden were not crimes, but rather examples of performing his presidential duties to ensure the integrity of a race that he believed had been stolen from him.
Judge Chutkan had little patience for such arguments, saying on Friday evening that neither the Constitution nor American history supported the contention that a former president enjoyed total immunity from prosecution. (NYT)
Trump’s lawyers are arguing as if he is already the dictator/king who is above the law which is what he plans to be if he returns to power. The argument would have Trump shielded from prosecution not only while in office but after leaving office too. They argue that a president has immunity while in office and then they go a step farther, arguing that that same presidential immunity should protect him from being prosecuted after leaving office for criminal activity engaged in WHILE in office.
Judge Chutkan totally rejects that idea in her ruling.
“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,” Judge Chutkan wrote. “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.” (NYT)
This is Constitutional law 101 but the reason it is a big deal here is that a case like this has never happened before, never been decided by a court before, because Nixon, who committed illegal acts as part of the Watergate conspiracy when he was president, got a pardon from Gerald Ford and left office before he was even indicted. So this case involving Trump is one of first impression for the courts. For that reason it will set legal precedent, which is a big deal.
ISSUE TWO
Next, Trump’s lawyers argue that since Trump was impeached for his actions related to the January 6th attempted coup to stay in power and the impeachment effort failed to convict him, he should be given a total pass in our court system for his attempted coup.
Judge Chutkan smacks that down too.
“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. … The constitutional limits on impeachment’s penalties do not license a President’s criminal impunity.”
ISSUE THREE
Trump’s lawyers make a First Amendment argument. Trump should get to say anything he wants because the First Amendment protects him from being prosecuted for any of his words. His speech should be protected while president and it should be protected because he is running for the office of president. Political speech gets greater protections under the First Amendment.
This is a bogus argument. People who commit crimes often say things that are part of the crime. A bank robber who says “Stick ’em up” to a bank teller and then shows a gun and takes money has used words plus deeds to commit a crime. Now pretend it is Trump saying “You gotta fight like hell if you want to have a country anymore” and then tells a crowd he knows is armed to go to the Capitol where the election is being certified and the crowd physically breaks into the building causing massive damage, injury and death. (Oh wait, that’s what Trump DID say!) What Trump said there should not be protected by presidential immunity. Crimes are often accompanied by speech that the First Amendment does not protect. In addition, that day at the Ellipse Trump was trying to stay in power after being voted out of office. He was acting outside of his presidential duties and Constitutional law.
That is just what Judge Chutkan says in her opinion:
“the First Amendment does not protect speech that is used as an instrument of a crime.”
WEAK ARGUMENTS BY THE TRUMP LAWYERS
It’s hard to believe that Trump’s lawyers thought they could have winning arguments with any of these issues as long since we currently still live in a democracy. Even the issue of first impression- can a president be shielded from prosecution after leaving office if he asserts presidential immunity? is a no brainer if we are living in a democracy. Duh! No man is above the law in a democracy.
Once the president becomes a regular citizen again like you or me, he is not empowered the way the president is while in office because the president’s power is granted from the Constitution, not because he is a special all powerful person or a revered cult leader. Dictators unlike presidents are all powerful people who have a cult of personality with followers. Presidents are part of a system where their power is derived from the Constitution and is bestowed on them only for a 4 year term of office and is always subjected to checks and balances even while in office.
Therefore, we already KNOW what the Supreme Court’s decision is going to be. The court will deny Trump’s presidential immunity arguments.
But, if we understand the motive of Trump’s legal team and Trump’s plan for the future if he wins re-election, Trump and his lawyers don’t give a hoot about the Court’s decision. The Supreme Court’s decision is almost irrelevant because what matters to Trump is how much DELAY he can get. Delay is the way he gets back in power.
Why?
Because if Trump is tried for the crime of trying to fraudulently overturn the election that he lost fair and square to Biden and found guilty by a jury of 12 regular Americans before the election of 2024, that reality will make it far more likely he loses the election. Polls reflect a 6 point loss across key the battleground states if Trump were to be convicted. That’s enough for Biden to win even with the issue of age and other concerns that currently bedevil him.
Until the Supreme Court rules, Jack Smith’s January 6th coup plot federal trial of Donald Trump will be in limbo awaiting the Court’s decision.
In short, Trump and his team are hoping for sufficient delay in the start of the trial to keep the public from having to vote for a convicted felon for president. If Trump gets re-elected president, he will appoint an attorney general who will get rid of all of these cases.
After that, Trump has promised he will seek revenge by indicting his enemies and sending them to prison for their lack of loyalty to him. His administration, chock full of people who are fine with the end of our democracy, will deconstruct our government and replace current seasoned workers who are loyal to the Constitution with vetted workers who are only loyal to Trump.
This plan is not speculation. It is clearly documented in Project 2025 being advanced by the Heritage Society with Trump’s full blessing. https://en.wikipedia.org/wiki/Project_2025
In addition, Trump has warned he will use the Insurrection Act to get our military to put down any dissent in the country. I will write about this in a future post. The Insurrection Act was broadened to put down revolts in the South after the Civil War. Trump is already saying he will use it to police parts of the country that do not bend to his will.
Given this situation, the survival of our democracy could come down at least in part to the TIMING of the Supreme Court’s ruling on the appeal from Judge Chutkan’s decision.
Timing of the decision is something the Supreme Court can control if it chooses to.
- If the justices care about sustaining our democracy they will quickly decide this appeal involving presidential immunity so that Trump’s DC trial can go forward as currently planned on March 4th. Judge Chutkan has given the Supreme Court a solid, well reasoned decision in which she also explains why the trial needs to be heard to flesh out any other issues before the Supreme Court weighs in. She has set it up for the Supreme Court to simply refuse to hear the appeal which would be the fastest resolution possible.
- However, if the majority on the Court wants to empower to the ultra-right-wing and open the door for that political force to dismantle our democracy, they will not decide the case fast enough for the trial to start in March, precluding a verdict before the 2024 election.
We know the ultra-right has bought Thomas and Alito. I think those two votes on the Supreme Court will always support what the ultra-right wants. But we do not know if Kavanaugh, Barrett and Gorsuch are on board with the end of democracy. As I have said before in The Markin Report, many Federalist Society attorneys (which they are) believe in the rule of law, take our Constitution seriously and want our nation to continue to be a democracy. We have to hope that at least a bare majority of Supreme Court justices want our country to continue as a democratic republic.
We have also learned that ultra-right Republicans are definitely planning to end our democracy. Read about Project 2025: https://en.wikipedia.org/wiki/Project_2025
The Heritage Society is currently vetting prospective hires in advance of Trump’s return to power. These people will be ready to immediately change our government into a dictatorship. Full stop. When you read articles about these right-wing Republicans trying to “expand the powers of the president” what that really means is that they plan to get rid of the impediments to governing that a democracy requires in a check and balance system. This is what happens when democracies die. They turn into what’s called “illiberal democracies” which are really dictatorships that give extraordinary power to the man or woman in charge. This is where we are heading as a county with Trump and the MAGAs.
The warning lights are blinking red. The end of our democracy is ahead if Trump wins.
If you are concerned about these developments, you can do your part to influence the outcome of the next election by talking with family and friends about what it would mean if Trump were re-elected, sharing this post, telling people about Project 2025, reading Liz Cheney’s new book Oath and Honor: a Memoir and a Warning, reading the recent articles in The Atlantic written by people who have been watching Trump’s actions for many years and understand what he will do if re-elected. All of us need to warn other Americans about what is coming if Trump is elected again.