Neither immunity nor impunity. The three judges of the Washington Court of Appeals have unanimously ruled in a powerful ruling that Donald Trump is not legally immune from the actions committed during his presidency. In doing so, they are rejecting an appeal by the former president against a similar decision by federal judge Tanya Chutkan. The former president is accused of four felonies in the Washington criminal case for attempting to change the results of the 2020 election, which he lost to Joe Biden, actions that led to the attack on the Capitol on January 6, 2021. The former president can still appeal to the full Court of Appeals and later to the Supreme Court, which has the final say.
“For purposes of this criminal case, former President Trump has become Citizen Trump, with all the defenses of any other criminal defense attorney. But any executive immunity that might have protected him during his term as president no longer protects him from this accusation,” the introduction to the 57-page ruling reads. “It would be a surprising paradox if the president, who has the ultimate constitutional duty to ensure the faithful observance of the laws, were the only position who could challenge them with impunity,” the justices explain in their decision. “We cannot accept that the office of president forever places its former holders above the law,” he says in another of his sentences.
At the appeals court hearing, which Trump attended voluntarily, his lawyer even argued that the president should enjoy immunity from trial for all types of crimes committed while in office unless Congress itself convicts him. Even when he ordered a task force to assassinate a political rival.
The justices contend that former President Trump's alleged efforts to remain in power despite defeat in the 2020 election would, if proven, constitute an unprecedented attack on the structure of American government. “We cannot accept former President Trump’s assertion that a president has unfettered authority to commit crimes that would undermine the most fundamental check on the executive branch: recognizing and enforcing election results. “We also cannot sanction his obvious assertion that the executive branch has carte blanche to restrict the right of individual citizens to vote and have their votes counted,” the ruling says.
There is relative legal consensus on broad immunity for sitting presidents from impeachment, but Trump has increased immunity for former presidents for actions related to the exercise of their office unless they have been previously impeached and convicted. Trump was acquitted by the Senate of incitement of insurrection on January 6, 2021, and his lawyers expect he will be impeached twice for the same incidents. The judges rejected this argument, pointing out that the allegations were separate charges and of a different nature, one political and the other criminal. No former president had ever been impeached until Trump, so there is no judicial precedent on the matter.
The ruling also refutes Trump's argument that the lack of criminal immunity will leave future presidents vulnerable to politically motivated prosecutions once they leave office. Although Trump has promised a presidency of revenge if he returns to the White House, the justices remind that prosecutors have “ethical obligations not to pursue unfounded prosecutions.” In addition, they remind that there are additional protections to prevent false accusations, including the right to be indicted by a grand jury after establishing reasonable grounds for a crime.
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The ruling published this Tuesday goes beyond simply rejecting the former president's claim to immunity. Their legal justification includes accusations of profundity since the justices ruled that Trump violated his duties to enforce the law in connection with the election. “That duty includes adhering to legal procedures for determining the results of the election and ensuring that executive power rests with the new president at the time specified in the Constitution.” To the extent that former President Trump claims that the legal dispute will follow the election 2020, which his election campaign and his supporters fought unsuccessfully, fulfilled his duty of care [de que se cumpla la ley]“That’s wrong,” they say. “Former President Trump’s alleged conduct is inconsistent with his constitutional mandate to enforce the laws that govern the process of electing the new president. “The public has a keen interest in the founding principle of our government that the will of the people, as expressed in the vote of the Electoral College, determines who serves as president,” they add.
The ruling suggests that former President Trump's immunity would break the system of separation of powers because he would be beyond the reach of the three. “Presidential immunity from federal prosecution would mean that, as far as the president is concerned, Congress could not legislate, the executive branch could not prosecute, and the judiciary could not review,” he says.
The justices also look back to the Watergate case to reject Trump's claim of near-absolute immunity. “Recent historical evidence suggests that previous presidents, including President Trump, did not assume that they would be completely immune from criminal liability for official acts during their presidency. “President Gerald Ford granted former President Richard Nixon a full pardon, which both former presidents apparently felt was necessary to avoid impeaching Nixon after his resignation,” the ruling said.
Gain time
Although the former president's appeal was rejected, his lawyers have so far managed to buy time. Judge Chutkan has indefinitely postponed the trial scheduled for March 4. It was the first time the former president was in the dock in one of four criminal cases in which he is accused of a total of 91 crimes.
Judge Chutkan already refused to file the case on grounds of immunity in the first instance, declaring in a harsh ruling that the office of the President “does not grant lifelong release from prison.” Trump's lawyers appealed to the Washington Court of Appeals, which now rejects his appeal. Normally an appeal does not paralyze the processing of a case, but in this case it does, because the question at issue is whether or not the former president can be indicted and tried.
Special prosecutor Jack Smith asked the Supreme Court to take action on the matter to buy time, but the justices preferred to continue processing the case. Trump can still appeal to the full appeals court and, if he loses, appeal to the Supreme Court, which will likely take the case and must set a date for oral arguments. All of this delays the process. At the same time, the Supreme Court is considering whether Trump can be disqualified for insurrection. The hearing in the case is scheduled for this Thursday.
Chutkan had set the date for the trial to begin on March 4, 2024, the eve of Super Tuesday, the day when most delegates will be elected in the presidential primaries. In the indictment for this case, which was Trump's third indictment, prosecutors charged him with four crimes: conspiracy to defraud the U.S. government, conspiracy to obstruct an official proceeding, obstructing or attempting to obstruct an official proceeding, and conspiracy to Violation of civil rights. Trump claims the election was stolen from him, but prosecutors are not accusing him of this grand, baseless hoax, but rather his actions aimed at changing the result and preventing the certification of Joe Biden's victory.
Trump is trying to delay his criminal trial as prosecutors seek to put him before a jury before the November election. If Trump is elected while the case is still pending in Washington, he could order the Justice Department to drop it or try to pardon himself.
The delay in the Washington trial clears the way for his first indictment on charges of commercial falsehoods in payments to cover up scandals in the 2016 presidential campaign (one of which was to porn actress Stormy Daniels to silence an alleged extramarital affair).
This is initially scheduled for five weeks starting March 25, 2024 in a New York State court. Chutkan had spoken to the New York judge to warn him that it might have to be postponed if the trial were to begin in Washington, but that is no longer the case. Trump must return to this New York court on February 15 for a preliminary hearing where the final details will be hammered out. Everything indicates that the case will start on time. Trump's lawyers and prosecutors have discussed jury selection procedures with the judge and some witnesses have been asked to be prepared to testify.
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