(Photo by Michael M. Santiago/Getty Images)
On July 1, Chief Justice John Roberts and his five henchman ensured that Donald Trump will never face justice for his crimes. The presidential immunity ruling of July 1 is both sweeping and hamfisted, ensuring that Trump will be able to litigate its contours not just through November, but for the rest of his natural life. They conveniently left open the question of whether executive immunity for actions within the “outer perimeter” of presidential duties merit absolute or merely presumptive immunity — just in case they need to swoop in and bail out their boy one more time.
Even the New York false business records conviction is in jeopardy, since the Court went out of its way to invent an immunity not just for official acts, but for evidence of official acts. Paying off a pornstar and then covering it up by laundering the payments through your private business is unquestionably unofficial conduct, but Trump’s conviction was secured with testimony from two presidential aides and his federal financial disclosure. So, even if Justice Juan Merchan rules that this was harmless error, it will be tied up in appeals for years. Sentencing is set for September, conveniently injecting Trump’s false business records conviction into the news cycle at regular intervals for the foreseeable future, and potentially pulling him off the campaign trail for court appearances.
And while Trump may escape a jail cell, he will not escape having his shit on main in a whole lot of courtrooms this fall. Some of that is by his own choice, as in the defamation suit he filed in Florida against ABC and George Stephanopoulos, who repeatedly suggested that Trump was an adjudicated rapist. In fact, the jury was unable to conclude that Trump managed to forcibly penetrate E. Jean Carroll with his penis, but did conclude that he was able to pin her against the wall while jamming his fingers inside her. Trump is inexplicably suing to remind us all once again that he is only a digital rapist, not a penile one. The case is set to go to trial in February, and discovery is ongoing after Judge Cecilia Altonaga denied ABC’s motion to dismiss.
Meanwhile, appeals of the $88 million verdicts in the Carroll cases continue apace, with oral argument before the Second Circuit set for September 6. Similarly, oral arguments in Trump’s appeal of the $354 million civil fraud verdict will likely take place in September or October before the New York Appellate Division.
On the criminal front, the Fulton County election interference case is functionally on ice, as is the Florida documents case, with the Eleventh Circuit asking the special counsel to brief his appeal of Judge Cannon’s Special Counsels Are Unlegal Akshully dismissal ruling in October.
But in DC, the federal election interference case is just getting back under way. Approximately 37 seconds after the Supreme Court relinquished control of the immunity decision, the DC Circuit remanded the case to Judge Tanya Chutkan to sort out the godawful mess SCOTUS made of it. She promptly set a scheduling hearing for next Friday to canvas the parties on how they intend to pick up the pieces. She also ruled on two of Trump’s pending motions to dismiss.
The one based on “statutory grounds,” in which the defendant claimed that nothing he did was against the laws, she denied without prejudice, inviting him to “file a renewed motion once all issues of immunity have been resolved.” This will presumably include an entire new section on 18 USC § 1512(c)(1), in light of the Supreme Court’s bizarro ruling in Fischer v. US that obstruction of an official proceeding has to involve destruction of paper documents.
Judge Chutkan also denied the motion to dismiss based on selective and/or vindictive prosecution. And this ruling was with prejudice in the extreme.
“At the outset, the court must address—as it has before—Defendant’s improper reframing of the allegations against him,” she began, adding that “The Indictment does not charge Defendant for publicly disputing the election outcome and merely ‘working with others’ to propose alternate electors.”
Trump’s legal theories in the underlying motion are beyond preposterous. Despite having promised to pardon the hundreds of January 6 defendants convicted for their efforts to block certification of President Biden’s electoral win, he complains that the government discriminated against him by treating him worse than his comparators. He claims that the appointment of a special counsel after he declared his candidacy is prima facia evidence of a plot to indict him, rather than the necessary protection to remove an ongoing investigation of a rival from the purview of the sitting president. He argues that articles in the Times and the Post reporting that Biden privately expressed his wish that Attorney General Merrick Garland would be more aggressive in his treatment of Trump was an express order in the form of a leak. And he insists that the indictment in DC must be vindictive, coming as it did on the heels of his decision to plead not guilty in the Florida documents case.
“Precedent squarely forecloses that line of reasoning,” Judge Chutkan scoffs, adding that “If vindictiveness could be established by new charges following a not guilty plea or a defendant’s public criticism of the prosecution, then defendants could effectively immunize themselves from superseding indictments by taking such action. That cannot be the law.”
This does not sound like a judge who is going to tolerate a lot of bullshit. But Trump’s lawyers are clearly about to launch an avalanche of it, insisting that the election interference case must be yanked out root and branch since the grand jury indictment was secured using testimony which is now excluded under the Supreme Court’s ruling. They’ll argue that every bit of the indictment, from the speech on the Ellipse to the pressure campaign to get Mike Pence to throw out valid slates of electors was part of his presidential duty.
It’ll be a massive, ugly fight. And at least the beginning of it will take place in the public eye, since Judge Chutkan scheduled the first hearing for August 16. Gentlemen, start your engines.
US v. Trump [District Docket via Court Listener]
US v. Trump [Circuit Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.
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