Fun Reading Legal Documents
And now it’s time for fun reading a legal document.
What? You didn’t know that reading legal documents can be fun? Well, I am about to demonstrate.
A motion to dismiss is a pretrial motion that says “Even if everything the prosecution says is true, there is no case and nothing to put before the jury because I win as a matter of law.” If you win on a motion to dismiss, it’s all over. There is no trial. The prosecution loses.
These are always uphill battles for the defense because the judge, in ruling on the motion, must assume everything in the indictment is true.
Judge Chutkan begins by summarizing some of the facts:
Defendant was the forty-fifth President of the United States and a candidate for re-election in 2020. Despite having lost that election, he was determined to remain in power, so for more than two months following election day on November 3, 2020, the Defendant spread lies that there had been outcome-determinative fraud in the election and that he had actually won. He knew that [those claims] were false, but repeatedly and widely disseminated them anyway—to make his knowingly false claims appear legitimate, create an intense national atmosphere of mistrust and anger, and erode public faith in the administration of the election . . .
Defendant also pursued unlawful means of discounting legitimate votes and subverting the election results . . .
With those facts, Trump put forward a novel theory about presidential immunity. He claims the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility while he served as President of the United States, so long as he was not both impeached and convicted for those actions.”
We can start with the idea that a president has “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility”
In fact, the president has nothing to do with monitoring elections, certifying elections, or the workings of Congress as it certifies the election. Therefore, the alleged conduct was not within the ‘outer perimeter’ of his official duties.
Trump tried to get around that by misstating the facts. According to Trump, the facts all involve his official communications with other official people, which, according to his theory, makes it all official.
Chutkan responds with:
“Those generalized descriptions fail to properly portray the conduct with which he has been charged.”
“Failed to properly portray the conduct” is judicial snark for “you are distorting the charges.”
And, for some more judicial snark from Chutkan, she says:
“Criminal conduct is not part of the necessary functions performed by public officials.”
And:
Ouch. Here is what she has to say about Trump’s claim of absolute immunity from criminal prosecution:
🔥
The Constitution, of course, says nothing about presidential immunity, much less immunity from criminal liability. But Trump came up with the idea that the Impeachment Clause of the Constitution gives him absolute immunity from criminal prosecution. Here is the Impeachment Clause:
This clause tells us that if a president commits an impeachable act, first he is impeached by the House of Representatives, then stands trial in the Senate, and if found guilty, he is removed from office. After he removed, he can be indicted. The order makes sense. A president is supposed to be governing the country, and he can’t do that if he is undergoing a criminal trial and then serving his punishment. So first remove him from office. Then prosecute him.
Trump, though, interprets the Impeachment Clause to say that if he is not first impeached and removed, he cannot be subject to criminal liability. Chutkan responds with:
She marches through a textual and historical analysis to show that this is not what this clause says, and then she says this:
(“Collapses under the application of common sense” is more judicial snark.) She then offers several ways that Trump’s interpretation collapses under the application of common sense, including:
Chutkan stresses the difference between criminal trials and other trials:
In other words, the public has a right to know whether a candidate for president tried to overthrow the last election. Offering absolute immunity from criminal liability for a sitting president who tries to overturn an election is simply nonsense. Next, Chutkan says this:
In other words, if Courts make a ruling that a president has absolute immunity from criminal liability, what will stop the president from breaking laws, particularly if he knows that 2/3 of the Senate will not remove him from office?
In a chef’s kiss of judicial snark, given that Trump is charged with trying to rig an election to keep himself in office, Chutkan compares Trump to George Washington:
Recall that when George Washington was president, the Constitution did not limit a president to two terms. The two-term limit was added after Roosevelt ran for office a fourth time. Washington decided not to run again, even though he could have, and even though I believe most historians will tell you that he would have won if he had run for another term. He didn’t run again because he was teaching Americans that presidents are not kings.
A look at Trump’s reelection strategy makes clear that Trump still hasn’t gotten the message that presidents are not kings.
Trump’s Reelection Strategy: Go Full-On Authoritarian-Crazy
Candidates run on promises. Here is a sampling of Trump’s 2024 campaign promises:
On September 24, Trump claimed that the parent company of NBC should be investigated for “treason” and said this: “I say up front, openly, and proudly, that when I WIN the Presidency of the United States, they and others of the LameStream Media will be thoroughly scrutinized for their knowingly dishonest and corrupt coverage of people, things, and events.”
On Nov. 29, Trump posted a link to a report by anti-Muslim conspiracy theorist and white supremacist Laura Loomer with a photoshopped picture of Florida Gov. Ron DeSantis wearing Hamas insignia. (Bye bye any semblance of holding on to truth.)
He is also running for president after announcing that he believes a president has absolute immunity from criminal liability.
This is not a stupid strategy under the circumstances. If Trump wins reelection after making these kinds of promises and demonstrating this kind of behavior, the American people will have chosen to install an autocrat in the White House.
As I have often said, democracy contains a self-destruct button. At any time, enough voters can elect officials who promise to dismantle democratic institutions.
If Trump is elected on these campaign promises, he will work on fulfilling his promises, thereby assuring himself of unlimited wealth and power. He will stand shoulder to shoulder with his idol, Putin.
It is either that or face the prospect of years in a Georgia prison, and having his New York financial empire dismantled in the fraud proceedings, etc.
The strategy is: Go big or go home.
In 2016, Trump made a few deals
In 2016, he made a deal with the Koch Network that basically went like this: If you support me, I will support your economic and policy agenda and I will appoint Supreme Court justices who will also support your economic policies.
He made a deal with the Christian nationalists that went like this: Support me and I will support your social policies. I will appoint Supreme Court Justices who will overturn Roe v. Wade.
He made a deal with Republicans who wanted to keep Democrats out of office by any means necessary that went like this: I will bring new voters to the polls by reaching into the rural areas and appealing openly to racism and sexism. Republicans have been having trouble winning national elections, so we need those voters.
Make America Great Again is a reactionary manifesto designed to appeal to people who wanted to turn back the clock to a time before the modern Civil Rights movment, before the women’s rights movement, before the New Deal, all the way back to that gorious time when a small number of white men dominated all of our institutions.
The problem for lots of people who want a libertarian economic agenda and a reactionary social agenda is that Trump is no longer running on a promise to give the libertarians the economic agenda they want and the Christian Nationalists the social agenda they want.
He is running to give himself unlimited power.
That’s why Nikki Haley’s Star is Rising
Nikki Haley is positioning herself as Trump without the Crazy. Accordingly, she is earning some major endorsements from people who want Trump policies without the Trump chaos and crazy.
She secured the backing of the Koch network, which means she will be flush with cash.
She had a series of private conversations with JPMorgan Chase CEO Jamie Dimon about the “global economy.” He has now backed her candidacy and who called on business leaders (and Democrats!!) to ‘Help Nikki Haley.” This, of course, means her economic plans are acceptable to Jamie Dimon, who was a Trump defender in 2016 and was an informal Trump economic advisor until 2017, when he got tired of Trump’s racism and hate, and parted ways with Trump.
Here is the problem with “Trump without the Crazy,” in a nutshell: Crazy is the part Trump supporters like. They like the show. They like the entertainment. They like the brazenness. They like the rule-breaking.
This is an apt observation by Conservative commentator Richard Hanania:
Trump is Rush Limbaugh, Tucker Carlson, Alex Jones, and Sean Hannity all rolled up in one — and his audiences love him. Nikki Haley cannot possibly compete with that.
And now I will answer this question:
I read that once Trump raises a claim of immunity, everything grinds to a halt unless the appellate court and Supreme Court fast-track the case.
Not quite, but with claims of immunity, special rules apply. Put on your nerd hats. 🤓 Here is what happens:
Under the SCOTUS case, Mitchell v. Forsyth, 472 U.S. 511, 525 (1985), an order denying immunity is a final, appealable order. (A final appealable order means you can bring an interlocutory appeal right now. Most appeals have to wait until after the trial.) An interlocutory appeal can stop cases in their tracks if the appellate court chooses to take the issue.
That means that Trump is entitled to bring the appeal now instead of after the trial.
The 9th and 7th circuits have laid out the procedure for how this works. The DC Appeals Court will probably follow these procedures, so let’s look at them.
The procedure in the 9th Circuit is given in Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992). Under this procedure:
The district court (Chutkan) has the option of declaring the issue frivolous.
If she declares the issue frivolous, the case can go to trial unless (1) Trump asks the appellate court for a stay and (2) the appellate court issues the stay.
Let’s just assume that one way or the other, Trump gets the stay on the proceedings. Let’s also assume Trump will ultimately lose on this issue (because so far every court, including the Supreme Court has ruled against him each time since he left office that he has claimed absolute immunity.)
If there is a stay, the district court loses jurisdiction to take the case to trial. (Here is what I don’t know: Can she still decide motions and make other orders?)
The question is: How long the stay will remain in place?
There is no reason the appellate court will not move quickly because so far it has. The courts understand the public interest in this trial.
Okay, so what about the Supreme Court?
Since November 3, 2020, SCOTUS has consistently ruled against Trump. They have so far refused to hear his immunity claims. They have refused to step in and help him. They ruled against him on the election fraud cases and refused to delay decisions until after January 6. They rejected his claims of executive privilege each time he tried to use that claim to dodge a court request or order. (See, for example, Trump v. Thompson.)
I therefore think we can assume it is unlikely that the Supreme Court will step in and delay the trial in this case (which is now set for March) and certainly will not create an eleven-month delay until the election.
As you all know, I do not believe that the 2024 election hinges on the outcome of these criminal trials. Put another way, if, given everything we know about Trump as of right now enough voters would vote him back into office, we have a serious problem that the criminal justice system cannot solve.