“An absolute tsunami”: Legal experts stunned at “disastrous legal day” for Trump

Two D.C. courts on Friday shot down former President Donald Trump’s presidential immunity claims related to January 6 and his efforts to overturn his 2020 election loss. 

U.S. District Court Judge Tanya Chutkan on Friday ruled that being president does not equate to “a lifelong ‘get-out-of-jail-free’ pass.”

“Former Presidents enjoy no special conditions on their federal criminal liability,” she wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

Chutkan also shut down Trump’s argument that the case presents a violation of his First Amendment rights, as his attorneys have alleged that his challenging of the election via claims of election fraud was a protected act of free speech.

“It is well established that the First Amendment does not protect speech that is used as an instrument of a crime,” Chutkan observed. “Defendant is not being prosecuted simply for making false statements … but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process.”

The judge also addressed how Trump’s lawyers have attempted to co-opt the Justice Department’s rule that sitting presidents cannot be prosecuted to have it apply to Trump, who acted while in office.

“Against the weight of that history, Defendant argues in essence that because no other former Presidents have been criminally prosecuted, it would be unconstitutional to start now,” Chutkan wrote. “But while a former President’s prosecution is unprecedented, so too are the allegations that a President committed the crimes with which Defendant is charged.”

As NPR noted, though the Supreme Court has maintained that presidents cannot be held civilly liable for actions related to their role as president, the legal system has never had to extrapolate that immunity and apply it to an indictment.

Special counsel Jack Smith’s team of prosecutors argued in a court filing that Trump “is not above the law.”

“He is subject to the federal criminal laws like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens,” Smith’s team wrote, arguing that there is no legal protection in place for a former president who allegedly committed criminal acts while in the White House.

Former federal prosecutor Renato Mariotti predicted that Chutkan’s “powerful opinion” would be “affirmed on appeal.”

“She’s right — Trump does not have a lifetime ‘get out of jail free’ pass. You can expect Trump’s lawyers to try to use the appeal of this motion to delay the trial,” he tweeted. 

Chutkan’s ruling came shortly after a federal appeals court in D.C. ruled that Trump could be sued in civil lawsuits related to the deadly Jan. 6 Capitol insurrection after multiple Democratic House members and Capitol police officers sued the former president. Trump is expected to appeal the unanimous decision.

Penned by Judge Sri Srinivasan, the opinion states that the president is not fundamentally immune to the law and “does not spend every minute of every day exercising official responsibilities. And when he acts outside the functions of his office, he does not continue to enjoy immunity. … When he acts in an unofficial, private capacity, he is subject to civil suits like any private citizen.”

The Democratic lawmakers, in their suits, allege that Trump and his co-conspirators threatened them to halt the congressional session that would have given way to the certification of Joe Biden’s presidential victory on Jan. 6. Capitol police officers assert in separate Jan. 6-related lawsuits that they suffered emotional distress and physical injury from the insurrection. The complaints mainly draw from a federal law that bars individuals from conspiring to prevent someone from holding federal office, as noted by CNN. 

Judge Greg Katsas wrote in his concurring opinion on Friday that it “is flexible enough to accommodate rare cases where even speech made during a campaign event may be official. And it is cautious, in leaving open both the question whether the [Trump January 6] speech at issue is entitled to immunity and, if not, whether the First Amendment nonetheless protects it.”

Trump campaign spokesperson Steven Cheung in a statement to CNN called the appeals court’s decision “limited, narrow and procedural.”

“The facts fully show that on January 6 President Trump was acting on behalf of the American people, carrying out his duties as President of the United States,” the statement added.

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Attorneys for the plaintiffs represented by the lawsuits lauded the decision. “This is the right result and an important step forward in holding former President Trump accountable for the insurrection on January 6,” said Matt Kaiser, attorney for Rep. Eric Swalwell, D-Calif.

“Today’s ruling makes clear that those who endanger our democracy and the lives of those sworn to defend it will be held to account,” lawyer Patrick Malone said in a statement after the opinion was released. “Our clients look forward to pursuing their claims in court.”

“We’re moving one step closer to justice, one step closer to accountability, and one step closer to healing some of the wounds suffered by [Officers] James Blassingame and Sidney Hemby,” said Kristy Parker, counsel at Protect Democracy. “As this case shows, our constitutional order does not grant former President Donald J. Trump immunity for his attempt to subvert our democracy.”

George Washington University Law Prof. Randall Eliason after the dual rulings tweeted that it was a “huge day in the progress of the justice system towards holding Trump accountable for the events of January 6, 2021. Huge.”

“From the standpoint of legal news, today is an absolute tsunami, culminating in Judge Chutkan’s opinion denying Trump‘s immunity motion,” agreed former U.S. Attorney Harry Litman. “Enough legal developments to choke a horse, and all in all a disastrous legal day for Donald Trump.”