As part of special counsel Jack Smith’s criminal case related to Donald Trump’s efforts to overturn his 2020 defeat, the former president’s legal team came up with a provocative defense.
The Republican’s post-election actions “are within the ambit of his office, and he is absolutely immune from prosecution,” Trump’s lawyers wrote in a court filing last month. They added that his efforts to claim illegitimate power were at “the heart of his official responsibilities as President.”
U.S. District Judge Tanya Chutkan considered the claim, and as my MSNBC colleague Clarissa-Jan Lim explained, the judge was clearly unimpressed.
U.S. District Judge Tanya Chutkan rejected Donald Trump’s claim that he cannot be held criminally liable for actions he took while he was in office, denying a motion to dismiss his 2020 federal election interference case.
“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,” Chutkan wrote. “Former Presidents enjoy no special conditions on their federal criminal liability.”
Indeed, the jurist was unrestrained in her categorical rejection of Team Trump’s argument that he enjoyed absolute immunity. “The Constitution’s text, structure, and history do not support that contention,” Chutkan wrote in her opinion. “No court — or any other branch of government — has ever accepted it. And this court will not so hold.”
She added, “It is well established that the First Amendment does not protect speech that is used as an instrument of a crime, and consequently the Indictment — which charges Defendant with, among other things, making statements in furtherance of a crime — does not violate Defendant’s First Amendment rights.” Chutkan concluded, “Defendant’s four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
This came just hours after a federal appeals court also rejected an “absolute immunity” claim from Team Trump in response to civil claims filed against the Republican by police officers injured during the Jan. 6 attack.
It took a few days, but late yesterday afternoon, the former president turned to his social media platform to share his reactions to the courts’ opinions:
“Judge says Trump does not have absolute immunity. This Radical Left ideology is a threat to the Presidency. It means that Crooked Joe Biden can be held personally liable for his Open Border Policy, and all of his other mistakes and decisions that are destroying our Nation!”
So, a few things. First, there’s nothing “radical” or even liberal about the idea that presidents lack “absolute” immunity. Second, the incumbent Democratic president isn’t “crooked”; the border isn’t “open”; and the United States isn’t being “destroyed.” But I’m also struck by the fact that Trump’s missive suggested that he doesn’t quite understand the basics of what’s unfolding. The Republican’s argument is that there’s no real difference between policy disagreements, legal liabilities, and alleged crimes. Courts have now ruled that Trump can be held accountable in court for allegedly crossing legal lines, which in his mind means Biden can also be held accountable in court for pursuing a governing agenda that some on the right don’t like. Either the former president’s lawyers haven’t explained what happened last week, or they did explain it and he didn’t understand the tutorial.
Steve Benen is a producer for "The Rachel Maddow Show," the editor of MaddowBlog and an MS NOW political contributor. He's also the bestselling author of "Ministry of Truth: Democracy, Reality, and the Republicans' War on the Recent Past."
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