Trump might be helping to make sure that no president is ever completely above the law… despite his best efforts.
But a pair of courts just brought him back down to Earth. Combined, they represent both a devastating loss for Trump—and a big deal for future presidents, too.
The two landmark rulings represent fresh statements of principle in the long-running and complicated fight over how presidents can be held accountable by the law. Key questions of presidential accountability have still never been resolved by the Supreme Court, because no president has ever tested the boundaries of acceptable behavior brazenly enough to focus the court system on resolving them—until now.
“The rulings are extremely important,” said Paul Rosenzweig, who served as a member of Ken Starr’s investigation team probing former President Bill Clinton, and authored the lecture series “Investigating American Presidents.”
“They make it more likely that Trump will be in court,” Rosenzweig said. “They reaffirm the idea that all people are equal under the law.”
Presidential Crime Time
The most important of Trump’s recent twin defeats fell in federal criminal court in Washington D.C., where Trump was charged for allegedly attempting to subvert the 2020 election.
Trump had tried to claim that as a former president he should enjoy “absolute immunity from criminal prosecution.” He also claimed that he should be exempt on the grounds of “double jeopardy,” unless he had been impeached and convicted while in office.
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But Judge Tanya Chutkan bulldozed these arguments in a 48-page ruling, and concluded a former president can be investigated, prosecuted, and imprisoned for crimes committed while in office—because committing crimes is not technically part of the president’s job.
“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,” Judge Chutkan wrote. “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 opinion is a huge deal—because the courts had not previously specified whether a president can technically be charged with a crime for his actions in office.
“The rulings by the Court of Appeals and Judge Chutkan on Friday offer important confirmation of the principle that a former president is not above the law,” former federal prosecutor Harry Sandick told VICE News. “While there may be limits on whether a president can be prosecuted for a crime while he or she is in office, these limits do not apply to former presidents.”
The Federal Department of Justice has long maintained a policy that it cannot charge a sitting president with crimes before the end of their term. That position, while never tested in court, effectively allowed Trump to skirt accountability during Special Counsel Robert Mueller’s investigation of the Trump campaign’s ties to Russia and whether Trump obstructed justice.
Mueller concluded he could not even reach an opinion about whether Trump broke the law. Most lawyers who read Mueller’s final report concluded that the team of prosecutors had collected enough evidence to charge Trump with obstruction, if he hadn’t been president. Trump has always denied wrongdoing, as he has all four criminal cases in which he has since been charged since stepping down.
Judge Chutkan’s decision not only blasted Trump’s dream of sweeping invulnerability, it also put future presidents on notice that they cannot expect to commit crimes while in office without worrying they might one day get a call from prosecutors.
“The right answer,” said Rosenzweig, “is that all criminal acts are, by definition if proven, outside the scope of presidential official conduct and thus not immune.”
In a separate civil case, an appellate court ruled that Trump could be sued by police officers who were injured during the Capitol riot of Jan. 6, 2021.
In a unanimous opinion, the court ruled that while Trump could not be civilly sued for undertaking his official duties as president, “his campaign to win re-election is not an official presidential act.”
Trump spokesman Steven Cheung told The Washington Post that, together, the two rulings “set dangerous precedents that would cripple future presidential administrations.” He added that “Trump will keep fighting for America and Americans, including by challenging these wrongful decisions in higher courts.”
But Rosenzweig said he expects both rulings to stand—although the bigger question will be whether the opinion authorizing Trump’s first criminal trial to begin this coming March can be litigated in time for the proceeding to begin.
“I think both are likely to be upheld,” Rosenzweig said. “The real question for the criminal cases is: How quickly? Can it be resolved before the March trial date? I think so… but just barely.”