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.
Teri, I tried to post this link in a reply to you asking for it, but never saw it posted. Then tried again and the website told me I had already posted an identical post, but still it doesn’t show up. Hopefully 3rd times the charm.
https://www.dailykos.com/stories/2023/12/8/2210589/-D-C-Circuit-Court-of-Appeals-sends-a-warning-to-the-rest-of-the-judiciary-about-Trump?pm_campaign=front_page&pm_source=latest_community&pm_medium=web
Thanks. It could be because my website doesn’t like links. I agree that the court sent a message with the mentions of the delays and timetables. It’s also clear that the appellate court in DC will not allow any delays.
As a former legal secretary/paralegal for 45+ years, I enjoy reading your explanations of all of the various legal intricacies of Trump’s criminal woes. While the wheels of justice do move slowly (at times slower than a snail ), I have a feeling that his more frantic postings are somewhat of a sign that he may be feeling the walls closing in on him.
On a totally unrelated note, I am concerned about JJ since there have been no recent postings about him. Even just a recent picture of him on guard duty in his favorite chair would be appreciated!
This isn’t relevant to her conclusions, but I believe I’ve spotted a small factual error near the end of Chutkan’s order.
She says “Defendant, who while President was acquitted in impeachment proceedings for
incitement” — that’s not quite right. The Senate trial in Trump’s second impeachment was held after he left office, and indeed several Republican senators (including McConnell) used that as justification for acquittal, arguing that a president can’t be convicted through the impeachment process after leaving office.
Your discussion of the effect trump’s claim of immunity will have on the timing of the criminal trial for 2020 election related offenses in Judge Chutkan’s DC District Court, you begin by outlining the procedure established in the Circuit Court for the immunity issue. It begins with Judge Chutkan declaring trump’s immunity claim frivolous. While you’ve indicated she was rather dismissive of trump’s immunity claim, is that the same as declaring it frivolous? In other words, has she kicked of the procedure for interlocutory appeal of the issue?
Thank you.
This is a good question. She has not designated it frivolous. Moreover, I don’t expect her to do that. The claim is very weak and will certainly lose, but I don’t believe rises to the level of a frivolous claim because it is a novel issue. (That said, remember my adage: We never really know what a court will do. Sometimes courts surprise us. Sometimes they get things wrong) but my sense is that it is weak but not frivolous.
Yesterday the D.C.Circuit Court of Appeals upheld Judge Chutkan’s gag order. I wonder if you would comment about this post from DailyKOS regarding the threat warning the Circuit Court sent to the rest of the Fed judiciary.
On another matter of a place where your writings would get more exposure to the public, may I suggest a posting to Daily KOS? It is my understanding that they have more than a half million subscribers.
And of course, thank you from this 80 yr geezer which proves that we gray hairs can still learn a thing or two. Hugs-
Can you show me a link?
The appellate court did what I predicted would happen: They followed the law. I have no idea how that is a warning.
Thanks Teri,
Love your concise summaries.
You forgot to mention that Trump voters not only want to grind back to the time before women’s rights, and BLM but gay rights and birth control and full fledged gasoline engines. All this putting their own children in peril.
Suppose he loses again and this time, rather than storming the Capitol, he tells heavily armed trumpists to purge his enemies. He’d do that and so would they. I think we ought to be planning around that scenario at this point since legal and electoral measures appear unlikely to prevent what’s coming. Does anyone think he’d just quietly go away if he loses?
“if … enough voters would vote him back into office, we have a serious problem that the criminal justice system cannot solve.”
Ah, but TFG has never won the popular vote (something he never mentions), losing that by 2% (2,800,000+) to Clinton in 2016 and almost 4.5% (7,000,000+) to Biden in 2020. All he needs to do to “win” is convince enough voters / invalidate enough of his opponent’s in states with enough electoral votes for his get out of jail free card. It is sad that the margins are that close overall but the strategy he and his cult are following where the margin is close enough is far more devious. That’s where the criminal justice focus is needed.
“Trump Claimed Absolute Immunity From Criminal Prosecution (and the court said ‘nope’)”
The court said, “*HECK* NO !!!” — way stronger than merely “nope.”
Your posts are always amusing and educating to read. This time, for me, I didn’t learn a lot, but I was _VERY_ amused.
> “By definition, the President’s duty to ‘take Care that the Laws be faithfully executed’ does not grant special latitude to violate them.”
I guess tRUmp didn’t know that.
Thank you for all you do. Really helps.
Thank you again for an excellent synopsis. Whenever I see your emails in the inbox I get a lift knowing I’ll find out the truth without having to do the usual weeding. Please keep sending them.
One question: doesn’t the repeated referral to Trump’s official acts or official duties undercut the 14th amendment argument about the presidency being outside of the list of disqualified people? Aren’t official acts done by officials or officers? And don’t officials hold an office?
Sincerely yours,
Charles Jackson
Excellent question. I, too, would love to hear an answer to this. Sadly, I think we are at the point where the courts need to define this. Let’s go Colorado!
Each time I revisit Section 3 of the 14th Amendment for myself, I can’t manage to avoid the specific clarity of its language, in relation to whether the President (or the Vice-President) is subject to “Disqualification from Holding Office.”
While the text does not specifically say, “This disqualification Does Not apply to the President and Vice-President, given that both are mentioned, while also not named as subject to this disqualification, I [non-professionally] agree with the determination:
To refer to “elector of President and Vice-President” in the words used therefore Does Not convey or imply that those two, uh, national “offices” are subject to the amendment.
Absent both the specific language And any implicit reason for using the 14th Amendment this way (and despite how stupidly frustrating we view the situation in this Dark Hour) it still appears to be beyond the power of the judge to rule that the Amendment does apply to Mr. [Whines Like A. Kindergartner And His Followers Love It] Trump, as subject to its terms.
I appreciate this exchange, which has led me to put somewhat-awkward words to my thoughts.
Regards,
(($; -)}™
Gozo
———
From the Constitution’s Text:
“Section 3 Disqualification from Holding Office
“No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. “
“I can’t manage to avoid the specific clarity of its language,”
It’s why the lawyers get paid the big bucks and Certain Judges like to rely on their motivated reasoning.
Thank you again, Teri, for your brilliant explanations and easy to read details.
I do wish you could have a regular news column that would be shared and distributed across channels so more of the general pop could learn and understand these processes you so eloquently describe and explain.
Indeed, as you make clear in your last paragraph – our democracy is at high risk – maybe the highest risk ever and it’s imperative people truly understand who and what they are voting for in November 2024.
Thanks for the law lessons. I have learned a lot from trying to overcome trump derangement syndrome. Buddhists say that our enemies are our greatest teachers.
One theory is that Trump supporters will vote for him because they, too, have an ax to grind and don’t realize what life under authoritarian rule will really be like. I am loathe to remember all the pitfalls our country could have avoided by anticipating the results of our actions, rather than committing knee jerk reactions of revenge.
I can’t believe we have to live like this. One election to the next could be the end of our country as we know it. But it is worse than that, it will also spell doom for our civilization because as marginal as our climate change response has been, under Trump or some clone we will just give up. Destroying the biosphere will be done with reckless glee.
The only alternative is to give in to autocracy. Nobody ever said that maintaining a democracy is easy.
You are my anchor. Thank you. I’m scared to death, but not paralyzed.
Thank you Teri.
I wait for your clear explanations.
I appreciate them so much.
Thank you.
Excellent post. Thank you.
I agree that it’s unlikely that SCOTUS would even take up his immunity appeals. They really have no standing based on the Constitution as Judge Chutkan so aptly pointed out. Besides, SCOTUS wouldn’t want to make itself irrelevant and powerless. I just hope that the trials can keep their dates and proceed. While it won’t convince his hard-core supporters, some guilty verdicts may push right-leaning (but not MAGA) independents back toward the Democratic side.
As for the threat to democracy which cannot be solved in the courts, absolutely. The only way to remain a democracy is through the ballot box. What concerns me there are the number of red states that have eliminated their non-partisan voting commissions and replaced them with partisan panels along with creating heavily gerrymandered districts. The voter suppression efforts could end up playing a significant role in the next election such that even though over 70% of the electorate supports democracy, the federal numbers don’t reflect that as we see in both the House and the Senate representation, and in the distance between the popular vote and the EC results.
Thank you for this nicely done and very informative distillation/redux… with a mix of some stark realities and subtle humor injected. KUDOS. It is a huge comfort to see the wheels of justice turn in the right direction… albeit much more slowly than we’d like. The notion that he can win again is absurd… he has not grown his base… in fact, he lost a lot of GOP voters that “cut him some slack” before all the dirt came out and so many of his toadies folded up and agreed to testify against him.
Got my Popcorn and Champagne ready for when “the Donald” (and his ever-so-guilty co-conspirators/minions) spiral down to jail cells.
Your final sentence is beyond chilling. Thank you for the superb analysis and clear explanation of the latest proceedings.
I’m not a lawyer, but I was an academic for more than 35 years – tax accountant. Weird that even though I was not a lawyer my entire career was about one slice of the law. I read volumes of court cases, appeals and articles and wrote about the law, regulations and court cases. So, I absolutely have loved reading the motions and responses in the Trump cases and the cases that attempted to overturn the election. I’ve found the motions and responses by the government lawyers to be well written, well researched and logical. But not so much with the motions and responses by Trump’s lawyers as the cases they cite are frequently not on point or don’t say what the lawyers want them to say. Their “novel” approaches are simply grasping at straws for the most part. I also find it interesting that they frequently include references to “President” Trump even though he isn’t President, and include political commentary when it isn’t relevant. I can’t believe Trump reads these things but he either has input into them or his lawyers summarize their arguments to him. Trump is going through the RNC and PAC coffers to pay his lawyers, and his delay tactics cost a lot of money.
My take is Trump and his lawyers are using the legal system (and resultant media coverage) to amplify his rhetoric to ignite his base, knowing that their case is doomed. Go big or go home. Doesn’t matter to him if he is found guilty because the cult extremists will be taking everything over. And this does not just mean Billy Bob gun-toter, etc. A small army of educated professionals are Trumpists and are plotting for his installation as supreme leader..
Great post. Very approachable for a nonlawyer. Thank you for the work you put into this!
The Supreme Court knows if he does get in, they will become mere puppets and have no power im sure.
“[I]f, 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.”
That’s for sure!
This is what troubles me greatly. It’s inconceivable, irrational, unconscionable, that someone who admitted his hands were not only in the cookie jar but lied about keeping some of the cookies all for himself, could possibly, legally, be given that very same jar full again.
A little correction: FDR was elected President FOUR times 1932, 1936, 1940, 1944 dying early in his fourth term.
Thank you for this timely response. I will forward to fellow activists. Your balanced and supported opinions are cool water on a hot day.