Judge Chutkan Rules Trump No Longer Entitled to Presidential Immunity

By Jerry McConway, updated on December 4, 2023

Judge Chutkan, who is overseeing the January 6 case brought by Special Counsel Jack Smith, made a ruling last week that has the Trump camp livid.

Chutkan ruled that now that Trump is no longer in office, he no longer enjoys the executive privilege of immunity from lawsuits.

Talking Points…

  • What is presidential immunity?
  • Judge Chutkan ruling
  • Trump camp responds
  • Analysis

What is Presidential Immunity

Per Article II, Section 3 of the Constitution, a sitting president has immunity from lawsuits.

Section 3 reads:

"He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States."

The Supreme Court established in 1867 (Mississippi v. Johnson) that the judiciary cannot direct a president in how he carries out "purely executive and political" powers.

The court added that it has "no jurisdiction…to enjoin the president in the performance of his official duties."

However, the court was also quite clear that it did not mean that it was blanket immunity regarding the judicial process.

That was tested when Richard Nixon was president, with the court holding that Nixon was "amenable to a subpoena to produce evidence for use in a federal criminal case."

Chief Justice Marshall put a bit of a wrench into the system, stating that while the president could be subpoenaed, the president could still withhold information based on executive privilege.

Once again, the initial ruling was tested in 2020 with Trump v. Vance, where the court found that the president is NOT ABSOLUTELY immune from state criminal subpoenas.

Judge Chutkan Ruling

The question in the case before Judge Chutkan is if a former president enjoys the same immunities as a sitting president, and based on the precedents that had been set, she ruled that is not the case.

According to Chutkan, any alleged crimes committed by a president while in office are still available for prosecution once that individual leaves office. She stated:

"The court cannot conclude that our Constitution cloaks former Presidents with absolute immunity for any federal crimes they committed while in office."

Chutkan then went on to explain the basis of her decision, adding:

"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. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office."

Chutkan further added that being responsible for actions after leaving office may make a sitting president think twice before taking action. She concluded:

"If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect.

She added:

"Every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them."

Trump Team Responds

Prior to the court decision, Trump's attorneys had asked Chutkan to throw out the case based on presidential immunity. They argued:

"But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President's motivations are not for the prosecution or this Court to decide," Trump's attorneys wrote. "Rather, where, as here, the President's actions are within the ambit of his office, he is absolutely immune from prosecution."

Former Trump adviser Stephen Miller went ballistic after the ruling was handed down, hitting on some rather interesting points.

Miller stated:

"Many likely don't appreciate just how radical and dangerous it is to revoke the doctrine of presidential immunity. In effect, this gives any single far-left judge, jury, or prosecutor a veto over the actions of the democratically elected president.

"The fact that such a persecution may initiate after a president has left office is irrelevant: future presidents will now exercise their office within the narrow confines of this anti-constitutional, anti-democratic framework."

He went on to argue that it is the American people who are being robbed of representation by this ruling, adding:

"A president is the embodiment of the state and the voter. So when he becomes liable for his exercise of speech as president it is, in fact, the whole American people who have been robbed of their sovereign authority—authority transferred yet again to the unelected, unreformed, and unaccountable.

"Conservatives not speaking out against these travesties are clearly uninterested in conserving this republic."

Trump campaign spokesman Steven Cheung added:

"Radical Democrats, under the direction of Crooked Joe Biden, continue to try and destroy bedrock constitutional principles and set dangerous precedents that would cripple future presidential administrations and our country as a whole, in their desperate effort to interfere in the 2024 presidential election."

Analysis

Let's, just for one second, take Trump out of this equation and think about the seriousness of the situation.

Could we now start charging a former president for murder in the case of an errant strike?

For instance, let's go back to December 12, 2013, when a drone strike was ordered in Yemen to take out what was believed to have been an enemy convoy.

The strike actually hit a wedding party, killing 12 and injuring 14 other people.

Since Barack Obama is no longer in office, should he now be charged with their murder? What about the military officials who were also part of this decision, such as Secretary of Defense Chuck Hagel?

What about the intelligence officials who supply the information? Do we start to prosecute the CIA Director as well?

Or, as it seems here, are we only doing this specifically to take out a former Republican president? Steven Miller also addressed this, stating:

"If presidential immunity only applies to acts Democrat partisans unanimously agree are legitimate presidential activities, then by definition there is no immunity for Republican officeholders—they serve at the pleasure of the leftmost prosecutor in the country at any given time."

Democrats use a different playbook than conservatives, and this is all rooted in our interpretation of the Constitution compared to theirs.

I guess the real question here is if Republicans hold firm and allow this all to play out or if they start to flip the script and start using the Democrat playbook against them.

The challenge, of course, is the mainstream media, which, by far, sympathizes with the left and shouts from the highest mountain when Republicans take similar action.

This is an issue that goes well beyond Trump, but nobody seems to be able to digest that fact.

The judiciary and Democrats are creating some new boundaries that will eventually come back to haunt them... the question is when?

About Jerry McConway

Jerry McConway is an independent political author and investigator who lives in Dallas, Texas. He has spent years building a strong following of readers who know that he will write what he believes is true, even if it means criticizing politicians his followers support. His readers have come to expect his integrity.

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