On Dec. 1, 2023, U.S. courts issued two opinions that left Donald Trump in continuing legal jeopardy for actions that he took while serving as president.
Chief Judge Sri Srinivasan, the chief judge for the U.S. Court of Appeals for the District of Columbia Circuit, ruled that Trump did not have immunity in civil suits for actions he took as a candidate and not in his official capacity as president. The opinion in Blassinghame v. Donald Trump (2023 WL 8291481, No. 22-5029) involves police officers and members of Congress who are suing Trump for damages related to physical injuries and emotional distress they suffered in the riot at the U.S. Capitol Building on Jan. 6, 2021, for which they alleged that Trump was responsible.
In a separate decision on the same day, U.S. District Judge Tanya Chutkan ruled that Trump did not have immunity from criminal charges brought by the Justice Department related to his efforts to overturn the election, including his actions before the Capitol riot. (United States v. Trump, Criminal Action No. 23-257)
Court distinguished between president’s official, private actions
Recognizing that Trump had broad immunity from civil suits in actions he took in his capacity as president, the D.C. Circuit Court decision distinguished the president’s immunity for official acts, as recognized in Nixon v. Fitzgerald, 447 U.S. 731 (1982), from what it considered to be potential liability for acts that he took in an unofficial private capacity, as in Clinton v. Jones, 520 U.S. 681 (1997), even if they involved matters of public concern.
Much of the decision focused on the fact that, in intervening in cases contesting the 2020 presidential election, Trump had claimed to be acting in his personal capacity as a candidate for re-election rather than in an official capacity. It thus distinguished Trump’s action as an “office-seeker” rather than as an “office-holder.” Judge Srinivasan’s decision affirmed the decision by Judge Amit P. Mehta in the case of Thompson v. Trump (2022) refusing to rule that the president was immune from civil liability for actions while he was in office. The appellate court did not find it necessary to ascertain, at this point in the proceedings, whether Trump’s pronouncements about the election and his speech to the crowd on Jan. 6, 2021, did or did not constitute incitement to imminent violent action, which according to Brandenburg v. Ohio (1969) is not protected by the First Amendment.
District Court also rejects presidential immunity in criminal case
The district court’s decision on immunity in United States v. Trump, which was issued on the same day as the appellate court decision, dealt with Trump’s claims of immunity for possible criminal actions that he had taken as president. Based on Trump’s conduct surrounding the presidential election of 2020, federal prosecutors have charged him 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, all of which are in violation of the U.S. Code.
Examining the text of the Constitution, which is silent about such immunity, and past precedents, Judge Chutkan rejected arguments that Trump could not be prosecuted simply because the Senate had failed to convict him of impeachment charges. She further ruled that immunity from criminal prosecution would challenge the nation’s “historic commitment to the rule of law” and denied arguments that it would unduly burden presidents. She pointed to “the special public interests in enforcing the criminal law.” She rejected arguments that decisions immunizing the president from civil suits from official acts as president offered similar protections for possible criminal wrongdoing. She observed that “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.”
District Court: Speech used as instrument of crime is not protected
In addition to asserting presidential immunity, Trump also asserted First Amendment grounds for dismissing his case. In response, the judge observed that “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime, and consequently, the Indictment—which charges Defendant with, among other things, making statements in furtherance of a crime—does not violate Defendant’s First Amendment rights.” She pointed out that laws have specifically criminalized speech intended to “induce or commence” such illegal activities as “fraud, bribery, perjury, extortion, threats, incitement, solicitation, and blackmail.”
Trump’s attorneys argued that the indictments violate the First Amendment because they involve “core political speech on matters of public concern,” that speech protections extend to speech “advocating the government to act,” and that Trump “reasonably believed that the 2020 Presidential Election was stolen.”
The judge responded to the first argument by observing that even if the speech does involve matters of public concern, this does not immunize speech used “to further criminal activity.” She further noted that the prosecution was not based on the viewpoint the president expressed but on possible “acts constituting criminal conspiracy and obstruction of the electoral process.”
As to the second argument, the judge dismissed the argument that Trump was protected by the Petition Clause of the First Amendment. She observed that “The Petition Clause does not insulate speech from prosecution merely because that speech also petitions the government.”
As to whether Trump believed his assertions that the election had been stolen, the judge observed that he could only be convicted if the government could show beyond a reasonable doubt that he knowingly made false statements.
The court also rejected arguments, largely based on the Senate’s failure to convict Trump on House impeachment charges, that prosecutions violated the double jeopardy provision of the Fifth Amendment, or the argument that the charges against him did not provide proper notice and thus did not give him due process.
It is highly unusual for an individual to be seeking a presidential nomination in the face of both civil and criminal charges against him, and it remains unclear which, if any, of the number of cases against Trump might go to trial (as the civil case for business practices in New York has already done) before he is either nominated by the Republican Party or reelected to the presidency. At least for now, it does not appear that he is likely to prevail either on grounds of presidential immunity or on grounds that his actions were protected by First Amendment free speech or petition guarantees.
Special counsel Jack Smith has asked the U.S. Supreme Court to leapfrog the appeals court process, which Trump has initiated in his criminal case, and hear an appeal directly from the district court decision with respect to Trump’s possible immunity from criminal prosecution.
John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. This article was published on Dec. 11, 2023.