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tanya chutkan
New Motion Presents Most Detailed Case Yet Against Trump for Insurrection Crimes
"The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal," said one consumer advocate.
Oct 02, 2024
Jack Smith, the special counsel probing former U.S. President Donald Trump's attempt to subvert the 2020 presidential contest, on Wednesday presented a massive trove of fresh evidence supporting his election interference case against the 2024 Republican nominee.
Smith's sprawling and highly anticipated 165-page motion—which was partly unsealed Wednesday by presiding U.S. District Judge Tanya Chutkan—states that Trump "asserts that he is immune from prosecution for his criminal scheme to overturn the 2020 presidential election because, he claims, it entailed official conduct. Not so."
Trump—who in August 2023 was charged with conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights—contends that his actions were taken in his official capacity as president and not as a private individual.
In July, the U.S. Supreme Court's right-wing justices—including three Trump appointees—ruled that the ex-president is entitled to "absolute immunity" for "official acts" taken while he was in office, raising questions about the future of this case. According to Smith's motion:
Although the defendant was the incumbent president during the charged conspiracies, his scheme was fundamentally a private one. Working with a team of private co-conspirators, the defendant acted as a candidate when he pursued multiple criminal means to disrupt, through fraud and deceit, the government function by which votes are collected and counted—a function in which the defendant, as president, had no official role.
In Trump v. United States... the Supreme Court held that presidents are immune from prosecution for certain official conduct—including the defendant's use of the Justice Department in furtherance of his scheme, as was alleged in the original indictment—and remanded to this court to determine whether the remaining allegations against the defendant are immunized.
The answer to that question is no. This motion provides a comprehensive account of the defendant's private criminal conduct; sets forth the legal framework created by Trump for resolving immunity claims; applies that framework to establish that none of the defendant's charged conduct is immunized because it either was unofficial or any presumptive immunity is rebutted; and requests the relief the government seeks, which is, at bottom, this: that the court determine that the defendant must stand trial for his private crimes as would any other citizen.
Smith's filing details what Trump told various people in his inner circle, including then-Vice President Mike Pence, his now-disgraced and twice-disbarred lawyer Rudy Giuliani, and leading White House and Republican Party figures—some of whose names remain undisclosed.
The motion also highlights Trump's actions on January 6, 2021, when his supporters stormed the U.S. Capitol in an attempt to stop Congress from certifying President Joe Biden's Electoral College victory. Trump is still pushing his "Big Lie" that Democrats stole the 2020 election; his running mate, U.S. Sen. J D Vance (R-Ohio), on Tuesday
refused to acknowledge that Trump lost to Biden when he was asked about the election during a vice presidential debate against Democratic Minnesota Gov. Tim Walz.
"Upon receiving a phone call alerting him that Pence had been taken to a secure location, [PERSON 15] rushed to the dining room to inform [Trump] in hopes that the defendant would take action to ensure Pence's safety," the filing states. "Instead, after [P15] delivered the news, the defendant looked at him and said only, 'So what?'"
Smith argued that deceit was central to Trump's efforts, specifically, "the defendant's and co-conspirators' knowingly false claims of election fraud," which they used to purvey the Big Lie.
The motion states:
When the defendant lost the 2020 presidential election, he resorted to crimes to try to stay in office. With private co-conspirators, the defendant launched a series of increasingly desperate plans to overturn the legitimate election results in seven states that he had lost—Arizona, Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin (the "targeted states"). His efforts included lying to state officials in order to induce them to ignore true vote counts; manufacturing fraudulent electoral votes in the targeted states; attempting to enlist Pence, in his role as president of the Senate, to obstruct Congress' certification of the election by using the defendant's fraudulent electoral votes; and when all else had failed, on January 6, 2021, directing an angry crowd of supporters to the United States Capitol to obstruct the congressional certification.
For a historic second time, Trump was
impeached by the House of Representatives following his effort to subvert the election, although he was subsequently acquitted by the Senate.
Trump spokesperson Steven Cheung
blasted Smith's motion as "unconstitutional" and "falsehood-ridden."
"Deranged Jack Smith and Washington D.C. Radical Democrats are hell-bent on weaponizing the Justice Department in an attempt to cling to power," Cheung said in a statement aping Trump's habit of overcapitalizing words. "President Trump is dominating, and the Radical Democrats throughout the Deep State are freaking out. This entire case is a partisan, Unconstitutional Witch Hunt that should be dismissed entirely, together with ALL of the remaining Democrat hoaxes."
Democracy defenders, however, welcomed Smith's ruling.
"Jack Smith has shown us yet again the merits of his case against former President Trump," said Lisa Gilbert, co-president of the consumer advocacy group Public Citizen and co-chair of the Not Above the Law Coalition.
"In his filing, Smith clarifies that the alleged criminal actions occurred while Trump was acting as a private citizen," Gilbert added. "The desperate plan that Trump embarked on to try and overturn the results of a legitimate election was reprehensible, irresponsible, and—the document shows—criminal. Accountability to the American people and our democracy is our only path forward."
Judge Chutkan unsealed the motion five weeks before Trump will face off against Democratic Vice President Kamala Harris in a tight presidential election. If he wins, Trump will have the power to order the Department of Justice to drop the criminal charges against him.
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With Trump v US, Roberts Fully Reveals His Ideological Extremism
The opinion proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example.
Jul 06, 2024
In November 2018, a public spat broke out between former President Donald Trump and Supreme Court Chief Justice John Roberts. It began when District Court Judge Jon Tigar of San Francisco overturned the Trump administration’s new restrictions on political asylum, leading the president to dismiss Tigar as an “Obama judge.” In response, Roberts issued a statement to The Associated Press, declaring, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. The independent judiciary is something we should all be thankful for.”
Determined to have the last word, Trump tweeted: “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country.”
The exchange with Trump bolstered Roberts’ image as an institutionalist committed to the fair and impartial administration of justice. But that image was and always has been a chimera.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete.
Roberts’ 6-3 majority opinion in Trump v. United States, which accords Trump broad immunity from criminal prosecution for his “official” acts as president, proves beyond a reasonable doubt that we do, in fact, have Trump judges. And Roberts is the quintessential example. He is the leader of a reactionary judicial junta hellbent on rolling back the Voting Rights Act, gutting reproductive freedom, dismantling the New Deal, and establishing an imperial presidency that is beyond legal accountability.
The immediate effect of Roberts’ ruling is that Special Counsel Jack Smith’s election-subversion indictment of Trump will be stripped of many of its most important allegations, and any trial on the indictment will be delayed until well after the November election. If Trump wins, as he likely would if the election were held today, he would be able to order his new attorney general to dismiss the case, and do the same with the Mar-a-Lago documents prosecution.
Longer term, as Justice Sonia Sotomayor argued in a blistering dissent, Roberts’ opinion will have more dire consequences, as it “invents an atextual, ahistorical, and unjustifiable immunity that puts the president above the law.” The opinion is also, according to Boston University School of Law professor Jed Shugerman, a “constitutional embarrassment… incoherent… [and] hard to decipher.”
But this is the Supreme Court, and decipher it we must.
Distilled to its essence, Roberts and his like-minded benchmates held that the separation of powers mandates immunity. Without presidential immunity, Roberts proclaimed, the executive branch would be unable to take the “bold and unhesitating action” the country demands from its commander-in-chief for fear that his successor would target him for prosecution, turning the executive branch into one that “cannibalizes itself” with every change of administration. This is a novel interpretation of the Constitution, which does not contain text providing for presidential immunity from criminal prosecution. It also deviates dramatically from the Founding Fathers’ vision of a constitutional republic. In Federalist 69 and 77, two of the most seminal of the founding-era texts, Alexander Hamilton wrote that the presidents of the then-new United States would not have unlimited power but could, if needed, be prosecuted in the ordinary course of law. The entire point of the revolution was to rid the fledgling nation of an absolute monarch and enshrine the principle that no one is above the law.
Contrary to this sacred tradition, Roberts’ ruling endows Trump and future presidents with a monarchical kind of immunity, which he divides into three categories:
- Absolute immunity for exercising the “core powers” of the presidency that are enumerated in Article II of the Constitution. These involve such matters as, in Roberts’ words, “commanding the Armed Forces of the United States; granting reprieves and pardons for offenses against the United States; and appointing public ministers and consuls, the Justices of this Court, and Officers of the United States.” Henceforth, actions taken pursuant to a core power can never be prosecuted.
- Presumptive immunity for “official acts” other than those considered core powers that are undertaken within the scope of the president’s official responsibilities and the “outer perimeter” of those responsibilities. The presumption can be rebutted, but only if the government can demonstrate that a given criminal prosecution “does not pose [any] dangers of intrusion on the authority and functions of the Executive Branch.”
- “Unofficial acts” for which there is no immunity.
This distinction between official and unofficial acts seems to be designed to rescue Trump from the clutches of the special counsel. Prior to the Roberts decision, the Supreme Court had never been called upon to review a criminal prosecution of a former president. Richard Nixon came close, but he had the good sense and just enough residual patriotism to resign and accept a pardon from Gerald Ford to avoid an indictment.
Roberts based his ruling in large part on a 1982 decision involving a wrongful termination lawsuit against Richard Nixon brought by a federal contractor. Nixon v. Fitzgerald held that presidents are entitled to “absolute immunity” in civil cases seeking damages arising from their official acts and “the outer perimeter” of their official duties. But Nixon v. Fitzgerald was explicitly limited to civil litigation, and the concurring and dissenting opinions in that case emphasized that the court’s decision had no application to criminal law. Now, courtesy of Roberts and his collaborators, Nixon v. Fitzgerald is the law of the land in both civil and criminal litigation.
Apart from Roberts’ lack of fidelity to constitutional text, history, and precedent, his opinion is conceptually sloppy, poorly organized, and incomplete. For example, Roberts concluded that Trump’s discussions with his then-acting attorney general and members of the Department of Justice about overturning the 2020 election were official acts entitled to immunity, but he declined to decide whether Trump’s discussions with Vice President Mike Pence are similarly entitled to protection or unofficial conduct undertaken as a candidate for office. That task—and the job of evaluating every other allegation set forth in Smith’s 45-page indictment—will be assigned to District Court Judge Tanya Chutkan when the case is sent back to her.
Even with the clearest guidance from the Supreme Court, the assignment of separating the official acts contained in Smith’s indictment from the unofficial ones would be time-consuming and daunting. But nowhere does Roberts offer a working definition of an unofficial act. Is an unofficial act one related to a political campaign, or one that is personal or private in nature, as Justice Amy Coney Barrett suggested in her concurring opinion? Although Roberts acknowledged that “distinguishing the president’s official actions from his unofficial ones can be difficult,” the closest he came to a definition is a line describing an unofficial act as one that is “manifestly or palpably beyond [the president’s] authority.”
Assuming that Chutkan can cut through the dense legalese of the majority opinion, she also will have to contend with the section of the ruling where Roberts holds that, “in dividing official from unofficial conduct, courts may not inquire into the president’s motives.” Because motive is often the key to proving criminal intent and intent is an element of the crimes alleged against Trump, it’s hard to see just how much of Smith’s case could survive even if Trump loses in November.
All that has Sotomayor and the dissenting justices outraged. “In fact,” Sotomayor argued in her dissent, “the majority’s dividing line between ‘official’ and ‘unofficial’ conduct narrows the conduct considered ‘unofficial’ almost to a nullity. It says that whenever the president acts in a way that is ‘not manifestly or palpably beyond [his] authority,’ he is taking official action.”
Forecasting nothing less than the demise of American democracy, Sotomayor continued:
The president of the United States is the most powerful person in the country, and possibly the world. When he uses his official powers in any way, under the majority’s reasoning, he now will be insulated from criminal prosecution. Orders the Navy’s Seal Team 6 to assassinate a political rival? Immune. Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune. Immune, immune, immune.
As the chief justice, Roberts could have assigned any other concurring member of the court to draft the majority opinion. That Roberts chose to write the opinion himself rather than farm it out to Clarence Thomas or Samuel Alito—both of whom should have recused themselves due to the conduct of their wives as outspoken supporters of the MAGA movement—or to one of the three younger justices appointed by Trump, is a testament to Roberts’ ego and a final and full revelation of his ideological extremism.
Roberts has spent his legal career as a right-wing political operative, dating back to his stint as a clerk for the late Supreme Court Chief Justice William Rehnquist, continuing in his work for the Reagan and Bush administrations, and into his role as a behind-the-scenes GOP “consultant, lawsuit editor, and prep coach for arguments before the Supreme Court” in the run-up to Bush v. Gore, the case that decided the 2000 presidential election.
His 2013 majority opinion in Shelby County v. Holder, which eviscerated the Voting Rights Act, ranks among the worst decisions in the Supreme Court’s history. His opinion in Trump v. United States deserves the same infamy.
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'Citizen Trump': Appeals Court Says No Immunity in Jan. 6 Case
One legal analyst said, "A president being immune to prosecution would fly in the face of our nation's core values."
Feb 06, 2024
A three-judge panel from the federal appeals court in Washington, D.C. on Tuesday unanimously ruled against former U.S. President Donald Trump's claims of immunity in a criminal case stemming from his efforts to overturn his 2020 loss.
"For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution," states the 57-page opinion.
The panel included one judge appointed by former GOP President George H.W. Bush and two appointed by Democratic President Joe Biden, who is seeking reelection this year. Trump is the Republican front-runner despite four ongoing criminal cases and arguments he is constitutionally disqualified from holding office again after engaging in insurrection on January 6, 2021.
Welcoming the development, the watchdog Citizens for Responsibility and Ethics in Washington declared: "Donald Trump is not above prosecution. The law and the Constitution apply to him just like they apply to every other American. This is a major victory for our democracy and the rule of law."
Lisa Gilbert, executive vice president of Public Citizen, said: "Yet another court has recognized that Trump's immunity arguments are absurd and held that he can be prosecuted for actions, undertaken while president, that enabled the January 6 insurrection. This decision puts yet another period at the end of the statement, 'No one is above the law.'"
People for the American Way President Svante Myrick also praised the decision, saying that "the judges on the D.C. Circuit court got it right: No president can swear to uphold the laws of the land and then enjoy immunity if he breaks them. The idea is absurd on its face and Donald Trump's claim of immunity is a desperate attempt to avoid accountability for his actions."
"But make no mistake; this ruling is likely to make Trump even more desperate, as he tries to escape criminal prosecution by any means—including winning reelection to the presidency so he can make this prosecution go away," he warned. "Now is the time to double down on our work to make sure Trump is held accountable for his crimes, and that he never occupies the Oval Office again."
The ruling aligns with the panel's skepticism during arguments last month. When one judge had challenged the limits of immunity by asking Trump's attorney whether a president could "order SEAL Team 6 to assassinate a political rival," the lawyer responded that "he would have to be and would speedily be impeached and convicted before the criminal prosecution."
The panel's decision comes after Judge Tanya Chutkan of the U.S. District Court for the District of Columbia—who rejected Trump's immunity claim in December—last week postponed his election interference trial, which had been scheduled for March. Trump is expected to appeal Tuesday's decision to the U.S. Supreme Court, whose right-wing supermajority includes three justices he appointed.
The mandate from the appellate court opinion denying Trump immunity "issues in six days on February 12," notedLos Angeles Times senior legal affairs columnist Harry Litman. "That's very quick and puts him in a box having to find a stay before then," from the full D.C. Circuit or the Supreme Court, or Chutkan can proceed with the trial.
The high court in December rejected a request from Special Counsel Jack Smith—who is overseeing Trump's two federal cases rather than the U.S. Justice Department because of the November election—that the justices skip over the appeals court to swiftly settle the immunity debate.
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