Jan. 6 charges and Trump’s last stand

In dispensing with Trump’s criminal immunity claim, Judge Chutkan held empathically, “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 so hold.” She continued, “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.”

A devastating blow

The court made clear that in a criminal case, Trump has even less claim to immunity than would a sitting president in a civil case as set out in Nixon v. Fitzgerald.

Unlike a civil suit for a sitting president, there is no concern here that prosecution would interfere with any official duties; moreover, the risk of “vexatious litigation” is greatly reduced because of protections afforded criminal defendants.

In affirming the public interest in prosecution, Chutkan deftly quoted George Washington: “The very idea of the power and the right of the people to establish government presupposes the duty of every individual to obey the established government.”

As for historical precedent, she noted that no claim of absolute immunity from criminal prosecution has ever been sustained (largely because no president, other than the pardoned Richard M. Nixon, has been credibly accused of felonies in office).

“Judge Chutkan’s ruling is, quite simply, as solid as a rock and as piercing as tempered steel,” constitutional scholar Laurence H. Tribe told me. “Aided by the DC Circuit’s unanimous rejection just hours earlier of Mr. Trump’s parallel but somewhat stronger claim in the civil liability context, the court has now rendered a devastating blow to the former president’s pretensions to what she rightly dismissed as a kinglike prerogative, one that our entire system of government rebels against.”

Attempt to overthrow elections

Judge Chutkan also dispensed with Trump’s bogus First Amendment claims, holding that he is not being prosecuted for speech but for attempting to overthrow the election. Speech in furtherance of criminal activity is not protected, she noted.

Likewise, the case does not represent viewpoint discrimination nor an attempt to criminalise a call for government action because, again, he is being prosecuted not for his views but for his illegal efforts to reverse the election.

The court then rejected Trump’s inane claim of double jeopardy based on his impeachment trial. First-year law students understand that impeachment concerns only the ability to retain and run for office; the criminal justice system operates separate and apart from impeachment in service of different aims.

That’s as effective a way of discouraging Supreme Court review as one might ever see.

Chutkan’s ruling, coupled with the circuit court’s decision, represents a devastating blow to Trump’s attempt to evade accountability for Jan. 6.

As Tribe put it, the decision might well have “shatter[ed] the last hope of the former president for avoiding the fate of running for the presidency as a convicted felon, a position in which much of his current support in the polls is bound to dissolve.” (Polling certainly bears out the conclusion that conviction as opposed to indictment would seriously hobble his election chances.)

Friday’s decisions open a relatively clear glide path to Trump’s March 4 trial, the very thing Trump has struggled to avoid. Within months, he will face prosecution by a capable Justice Department team armed with devastating facts and clear law before a competent judge.

Trump’s strategy to forestall justice by recapturing the presidency looks more and more like a pipe dream. — Washington Post

Jennifer Rubin is a noted columnist and author