Federal judge says Trump does not have absolute immunity, denying bid to dismiss election subversion case

By Katelyn Polantz and Hannah Rabinowitz, CNN

(CNN) — The federal judge presiding over Donald Trump’s election subversion case in Washington, DC, has refused to dismiss the charges against the former president, saying he does not enjoy absolute immunity for what he said and did after the 2020 election.

“The court cannot conclude that our Constitution cloaks former Presidents with absolute immunity for any federal crimes they committed while in office,” US District Judge Tanya Chutkan wrote.

This is an issue that likely must be settled by an appeals courts above Chutkan before Trump’s criminal trial, set for March.

Chutkan’s opinion – that came after an appeals court said earlier Friday that Trump could be sued in civil proceedings related to the January 6, 2021, riot – is a resounding blow on a significant question about presidential protections that Trump hoped to use as he tries to stave off criminal cases. It also means that unless an appeals court steps in, the judge sees no issue with Trump being tried in the coming year.

“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,” Chutkan wrote.

She added that Trump’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.”

Trump’s lawyers had asked Chutkan to throw out the four charges he faced in Washington because they said Trump was working to “ensure election integrity” as part of his official capacity as president when he allegedly undermined the 2020 election results, and therefore is protected under presidential immunity.

“But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide,” Trump’s attorneys wrote. “Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution.”

But Chutkan rejected that argument, writing that “to the contrary, America’s founding generation envisioned a Chief Executive wholly different from the unaccountable, almost omnipotent rulers of other nations at that time.”

Instead, the judge wrote, the prospect of future criminal liability should “encourage the kind of sober reflection that would reinforce rather than defeat important constitutional values.”

“If the specter of subsequent prosecution encourages a sitting President to reconsider before deciding to act with criminal intent, that is a benefit, not a defect,” Chutkan wrote, adding that “every President will face difficult decisions; whether to intentionally commit a federal crime should not be one of them.”

The former president’s attorneys also raised that a president can only be indicted if he was convicted by the Senate during impeachment proceedings. The judge shot down that idea, saying that the argument only applies to a sitting president – which Trump is not.

She also wrote that Trump’s assertion that his indictment violated his First Amendment rights is incorrect, because “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime.”

The difficulties that would come with prosecuting a sitting president versus a former president are very different, the judge also said in her opinion, and “far less intrusive on the functions of the Executive Branch” – a finding that’s particularly problematic for Trump.

This story has been updated with additional details.

CNN’s Zachary Cohen contributed to this report.

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