There was some small degree of controversy about whether a sitting president could be prosecuted, as the Department of Justice Office of Legal Counsel issued a memorandum that a president could not during the term of office. This wasn’t law, but DoJ opinion, which ordinarily binds the federal government’s exercise of authority. And frankly, who would have ever thought we would need such an opinion, given that we’re talking about the president of the United States here, someone who should be a paragon of integrity, if nothing else. Would there ever be another Richard Milhous Nixon?
This was, upon reflection, the correct decision. So long as a person was president, the person could not be dragged into local courthouses by prosecutors who oppose the person to make it impossible to do the job of president. There is room for debate, but this was the only practical outcome.
But after the loving was another matter.
The Constitution’s text, structure, and history do not support that contention. No court—or any other branch of government—has ever accepted it. And this court will not so hold. 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.
Moving to dismiss the Smith indictment in the District of Columbia, Trump argued that once a president, his presidential immunity extended beyond his term and precluded his prosecution forever. It was a bold argument. There was no predicate for it, but then, Trump was the first former president to be prosecuted, so how could there be?
The argument wasn’t quite as specious as it first appears. He wasn’t arguing that he could walk down Fifth Avenue shooting people for the rest of his life, but that he could walk free for that poor schmuck he shot during his presidency as long as he could plausibly tie it to some “outer perimeter” duty as president.
But then, the argument never stood a chance. There is nothing in the Constitution to suggest that the president can commit crimes and get away with it. If the president walked into the mint and grabbed a bag of loot, was that okay? If the president shut the door to the oval like it was a fitting room at Bergdorf’s and grabbed someone’s lady parts, was that okay?
But the theory isn’t that Team Trump ever believed these arguments stood a chance, but that they were plausible enough to jam up the wheels of justice.
Mr. Trump’s lawyers had expected the immunity motion to fail. They have, in fact, been planning for weeks to use the defeat to begin a long-shot strategy to put off the impending trial. They intend to appeal Judge Chutkan’s ruling all the way to the Supreme Court if they can, hoping that 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.
Most criminal defendants would never consider such a play for a bunch of pretty good reasons. First, there is the matter of cost, as it can get very expensive appealing every interlocutory burp along the way if you’re the sort of defendant inclined to pay your legal fees. Few defendants can afford such pointless extravagance, as there is no reasonable chance of prevailing at the end of the run.
Second, even if you could achieve a year or so of delay, what difference would it make to anyone not running for president? You would eventually be tried, convicted and sentenced without any hope that you could order the DoJ to drop your prosecution or go for the novel notion of applying the Pardon Power to yourself.
Whether Trump will win the presidency is another matter. If he loses, then these machinations are all for naught. Sure, some future Republican president can pardon him, but he will have already been convicted and sentenced, his humiliation complete. But then, neither Trump’s open if psychotic proclamations of how he intends to violate law and Constitution to subvert the presidency to consolidate his power and punish his enemies, nor his accumulating loyalists who will do anything, no matter how unlawful or disgusting, for Trump, seem to be of much interest at the moment. As his putative opponent, President Biden, has become “Genocide Joe” to the Hamas wing of the Dems, it’s looking increasingly possible that Trump could win.
Delay is only a good strategy if there is something at the end of the rainbow. It could not have worked had the attorney general not sat on his hands doing nothing for two years, but he did. It could not have worked had the progressive wing of the Democrats not seized upon their flavor of oppression in Palestine as being of greater moment than returning the new, worse, Trump to power, but they did.
Judge Chutkan did her job by denying Trump’s motion. Whether there is a payoff for Trump at the end is pretty much up to us.