Perhaps the single greatest risk that former President Donald Trump’s federal criminal trial in Washington would be delayed for years or even dismissed was his argument that he enjoys presidential immunity for his actions relating to Jan. 6. That risk was because the questions raised by this novel application of the defense had never been resolved by the courts. But on Friday, federal courts in Washington, D.C., dealt a devastating one-two punch to Trump’s position. These decisions carry major implications for all manner of litigation involving presidents — and signify that the March criminal trial is likely to proceed as scheduled.
The first bombshell came Friday morning, when the U.S. Court of Appeals for the District of Columbia Circuit rejected Trump’s attempt to dismiss three civil cases brought against him regarding his actions on Jan. 6. In Blassingame v. Trump, Capitol Police officers and members of Congress present at the Capitol that day sued Trump for alleged harms they suffered as a result of what occurred. Trump had moved to dismiss the lawsuits on the basis of presidential immunity.
Chutkan’s landmark ruling was the first time a court had ever been presented with the question of presidential criminal immunity.
But the D.C. Circuit found that presidential immunity only applies to official acts, and that Trump’s conduct relating to Jan. 6 was fundamentally political activity to hang onto his office. Those who allege directly and physical harm from the consequences of Trump’s actions on Jan. 6 can now hold him accountable for damages in court.
Later that day, District Judge Tanya Chutkan issued a sweeping and powerful opinion rejecting absolute presidential immunity in the criminal case. She ruled that “former Presidents do not possess absolute federal criminal immunity for any acts committed while in office,” and thus that Trump “may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”
Chutkan’s landmark ruling was the first time a court had ever been presented with the question of presidential criminal immunity — since no other current or former president before Trump had ever been indicted. Faced with this novel and momentous issue, the judge outlined how the text, structure and history of the Constitution, along with the nation’s history and democratic principles, does not support the concept of presidential criminal immunity. Trump’s “service as Commander in Chief,” Chutkan wrote, “did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
In both cases, Trump had argued that the presidential immunity, established by the Supreme Court in Nixon v. Fitzgerald, should apply to his attempt to overturn the 2020 election, culminating on Jan. 6, 2021. In Fitzgerald, the Supreme Court outlined that presidents retain immunity from civil liability for any actions taken within the “outer perimeter” of their official capacities as president. The court later clarified, in Clinton v. Jones, that the scope of civil presidential immunity does not extend to the president’s unofficial actions.
Trump’s argument failed in both cases. “When a first-term President opts to seek a second term,” the D.C. Circuit ruled, “his campaign to win re-election is not an official presidential act.” The actions a president takes in an effort to win a second term do not fit within the civil presidential immunity outlined in Fitzgerald. As the court succinctly put it, when the president campaigns, “he is acting as office-seeker, not office-holder.”
The American public deserves to know whether one of the presidential candidates is a convicted criminal before voting.
Meanwhile, in the criminal case, Chutkan rejected Trump’s attempt to import the civil standard in Fitzgerald into a criminal context. By ruling that the president possesses no absolute criminal immunity for any acts committed while in office, Chutkan made the gradations of presidential immunity that exist in civil cases irrelevant. Indeed, Chutkan explicitly held that the court “expresse[d] no opinion on the additional constitutional questions attendant to Defendant’s assertion that former Presidents retain absolute criminal immunity for acts ‘within the outer perimeter of the President’s official’ responsibility” since, given the court’s ruling, it “need not reach” that issue.
Although Chutkan chose not to apply the Fitzgerald standard, it is surely not a coincidence that she waited for the D.C. Circuit’s ruling. It would have been odd to say Trump was immune in the civil cases but could be prosecuted criminally. Moreover, she cited the appellate decision several times in crafting her argument. Though the rulings’ arguments differ, their outcomes rhyme. Now the civil case will turn to the discovery process, while the criminal case speeds toward a trial in three months. Trump likely will appeal Chutkan’s ruling — and will also seek to stay the case pending the appellate decision on the immunity question. But this appeal should fail — and be dispatched quickly without a stay. Chutkan has produced a thorough, well-reasoned and convincing opinion. There is simply not enough weight to Trump’s argument that presidential immunity divests the court of jurisdiction for him to ultimately succeed — or to deserve a stay. Besides, any need for a stay is obviated if an appeal is resolved quickly — and there is precedent for the courts to do just that in cases of particular public significance. There is an enormous public interest in the Trump criminal trial being completed before the 2024 election. The American public deserves to know whether one of the presidential candidates is a convicted criminal before voting; and it is vital to prevent Trump from potentially using the power of the presidency, if he were to win, to avoid prosecution entirely. Given these stakes, appellate authorities should act swiftly to resolve this issue. We hope they will do the right thing and that Dec. 1, 2023, will be remembered as a historic day: one when it was definitively established that presidents are not above the law — civilly or criminally.
Norman Eisen
Norman Eisen is a co-founder and board member of Democracy Defenders Action and publisher of The Contrarian. Eisen previously served as a U.S. ambassador and in senior White House and congressional staff roles.
Joshua Kolb
Joshua Kolb is counsel and manager of Rapid Legal Response at State Democracy Defenders Action. 
