A Criminal President is Not Immune

Judge Tanya Chutkan rules forcefully against Donald Trump's insistence that he is "absolutely immune"

Judge Tanya Chutkan: “All the officers of the government…are creatures of the law, and are bound to obey it.” (Photo by Brendan Smialowski/AFP via Getty Images)

What does a despotic, criminally charged former president want more than immunity to keep doing what he does? What does such a man, convinced that the law does not apply to him, expect more than total freedom to exploit peoples’ vulnerabilities without consequence?

On Friday, U.S. District Judge Tanya S. Chutkan released her opinion in United States of America v. Donald J. Trump, batting down Trump’s claim that he possesses presidential and constitutional immunity in the Washington, D.C. case concerning his alleged role to subvert the results of the 2020 election and stay in power. “Whatever immunities a sitting President may enjoy,” she clearly stated, “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.”

The judge’s 48-page ruling is a powerful statement (and a necessary rebuke to this particular defendant) asserting that a U.S. president is not a king. Indeed, as she noted, in Federalist No. 69 Alexander Hamilton emphasized a “total dissimilitude between [the president] and the king of Great Britain”; in the latter case, there is “no punishment to which he can be subjected.” And more: “That widely acknowledged contrast between the President and a king is even more compelling for a former President,” underscoring that he is not exempt from criminal liability.

This liability, Chutkan wrote, “is essential to fulfilling our constitutional promise of equal justice under the law.” Quoting the Supreme Court’s decision in Marbury v. Madison from 1803, she noted, “The government of the United States has been emphatically termed a government of laws, and not of men.” And that principle refers to “citizens and officials alike.” As Chutkan summarized it:

No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.

Early on in reading Chutkan’s ruling, I began thinking about George Washington’s prophetic 1796 farewell address and his warning about the dangers of factionalism, despotism and the potential of a demagogic despot to exploit the country’s “disorders and miseries,” gradually causing “the minds of men to seek security and repose in the absolute power of an individual.”

I was pleased to see Judge Chutkan turn to Washington to help make her case, noting that “perhaps no one understood the compelling public interest in the rule of law” better than Washington, who voluntarily left office after serving two terms, “ushering in the sacred American tradition of peacefully transitioning Presidential power,” a tradition which “stood unbroken” for 245 years. Until Trump.

“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,” Chutkan quotes from Washington’s address. And more, “All obstructions to the execution of the laws,” including group arrangements to “counteract” the “regular deliberation and action of the constituted authorities, are destructive of this fundamental principle.”

Recognizing how powerfully Washington’s warnings speak to our time and the particular case of Donald J. Trump, Chutkan noted the first president’s fear that such obstructions could be “fatal” to the republic as “cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and to usurp for themselves the reins of government, destroying afterwards the very engines which have lifted them to unjust dominion.”

As careful as Chutkan’s legal reasoning is, her deeply felt conviction about the stakes of this case pulses through the ruling. “In asserting absolute executive immunity,” she writes, “Defendant asks not for an opportunity to disprove those allegations, but for a categorical exemption from criminal liability because, in his view, ‘the indictment is based solely on President Trump’s official acts.’ That obstruction to the execution of the laws would betray the public interest.”

Chutkan then turned to a 1947 opinion by Justice Felix Frankfurter to emphasize that this ruling is not merely about defendant Trump, but the future of the country. “If one man can be allowed to determine for himself what is law,” she quotes, “every man can. That means first chaos, then tyranny.”

Sure, Trump’s legal team will quickly appeal Chutkan’s ruling, the first of its kind involving a former president, since no current or former president has ever been criminally charged. That appeal and a likely subsequent appeal to the Supreme Court could delay the trial now scheduled for March.

As Alan Feuer noted in The New York Times, Trump’s lawyers expected this immunity motion to fail, but saw it as “a long-shot strategy to put off the impending trial” as they pursue their appeals. Their hope: “Even if they lose, their challenges will eat up time and keep the case from going in front of a jury until after the 2024 election.”

This ruling does take another critical step forward in turning the wheels of justice. May they grind quickly enough so that Trump will be held accountable before the next election. After all, this is about nothing less than saving democracy from tyranny.

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