Donald Trump cannot rely on presidential immunity in his impeachment trial for election interference. This is what Federal Judge Tanya Chutkan decided. Now the former president must choose a different strategy: stalling to buy time.
How inviolable is the American president? It’s a question that has never been answered in the 247 years of the United States’ existence. Or rather: a question that never needs an answer. After all, no president has been impeached after leaving office – not even Donald Trump this year, not once, but four.
Now Trump is putting this question at the heart of his defense. The former president is demanding immunity from any possible crime committed while he was in office. In this way he hopes to avoid prosecution, especially regarding election interference, which is the first criminal case on the agenda. Federal Judge Tanya Chutkan had the daunting task of answering this key question. I did it last Friday night.
“Four years as commander-in-chief does not give him the divine right of kings,” Chutkan wrote in a scathing assessment. “Former presidents do not enjoy any special conditions for criminal liability.”
The judge did it. Chutkan draws on distant history, with references to the first president, George Washington, and President Federal Papers, founding documents of the United States. She also quotes the late Chief Justice Felix Frankfurter: “If one man can decide for himself what the law is, every man can also decide it. This leads first to anarchy, then to tyranny.”
In short, the criminal case can proceed. Another judge ruled on Friday that the former president could also be held liable for his actions in civil cases. It seems that Trump’s legal strategy has returned to him like a rebound. But this is not the whole story.
Judge Tanya Chutkan does not have the final say. Trump’s next strategy is to appeal until his question eventually reaches the Supreme Court. It is questionable whether the chief justices would reach a different conclusion than Chutkan, but not unlikely, especially in the current configuration. Trump appointed three of the nine justices. But even if they agree with Chutkan’s assessment, this strategy provides the former president with valuable capital: time.
The first criminal trial is scheduled for March 4, 2024. This trial, in the wake of Trump’s attempt to overturn the results of the 2020 election, is expected to last two to three months. That means Trump could be convicted, and possibly jailed, before the Republican Party officially nominates a presidential nominee at a convention in mid-July. Although Trump’s popularity has not yet been affected by his prosecutions, voters indicate that his conviction may affect their vote.
The clock is ticking. Trump’s team hopes the lengthy appeals process will push back the start date of the first trial until after the party convention. Once Trump is officially nominated, there’s a good chance it will be delayed longer. A judge cannot force a presidential candidate to spend the final and crucial months of the election campaign in the dock. This would seriously disrupt the democratic process.
Trump does not hide the fact that he views politics as an emergency escape from his criminal predicament. If he actually becomes president again, he could ask the Justice Department to drop the federal criminal cases against him. He may even try to pardon himself. Trump will do everything he can to avoid conviction before then.
Therefore, Trump is pinning his hopes on the right-wing Supreme Court, which has often lost credibility recently, including by abolishing the fundamental right to abortion. Whatever the final ruling on presidential immunity, if they delay long enough, it would be a great gift to Trump.
In her ruling, Judge Tanya Chutkan warned of the long-term consequences for the United States if Trump is granted immunity in this case. “Every president will face difficult decisions,” she wrote. “Whether or not you committed a federal crime intentionally, it shouldn’t be one of them.”
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