Donald Trump does NOT have absolute immunity from federal charges of trying to overturn 2020 election, judge rules in blow to former president

In a first-of-its-kind ruling, a US federal judge has decided that former President Donald Trump does not have immunity from criminal charges over actions he took while in office.

The ruling on Friday night came as a blow to Trump, blocking his bid to toss out charges brought in Washington DC by Special Counsel Jack Smith accusing him of unlawfully trying to overturn his 2020 election loss. 

US District Judge Tanya Chutkan, who is overseeing the case, found no legal basis for concluding that presidents cannot face criminal charges once they are no longer in office.

She wrote in the ruling: '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.'

Separately, a three-judge federal appeals panel on Friday also rejected Trump's sweeping claims that presidential immunity shields him from liability in lawsuits accusing him of inciting the mob that attacked the US Capitol on January 6, 2021.

In the criminal case, Judge Chutkan offered a sweeping condemnation of Trump's legal arguments in a 48-page memorandum, noting that he is 'charged with attempting to usurp the reins of government'.

Because Trump is the first current or former US president to face criminal charges, Chutkan's ruling is the first by a US court affirming that presidents can be charged with crimes like any other citizen.

The judge also rejected Trump's central argument that the charges violate his free speech rights under the US Constitution's First Amendment. 

Trump's lawyers had argued that the case by Smith 'attempts to criminalize core political speech and political advocacy.'

Chutkan's memo flatly dismissed that argument, noting that 'many long established' criminal laws criminalize speech used in the commission of crimes, including 'fraud, bribery, perjury, extortion, threats, incitement, solicitation, and blackmail.' 

Chutkan's ruling in DC brings Trump a step closer to facing a jury on charges that he plotted to interfere in the counting of electoral votes and obstruct congressional certification of Joe Biden's victory. 

Trump has pleaded not guilty and accused prosecutors of attempting to damage his campaign.

The trial is scheduled to begin in March, but Trump can immediately appeal the ruling, which potentially could delay the trial while an appeals court and potentially the Supreme Court weigh the issue.

Trump has additional pending legal motions to dismiss the case based on other claims including that his conduct as alleged by prosecutors does not fit the charges they brought. 

In addition to the case being pursued by Smith, Trump also faces state criminal charges in Georgia related to his actions seeking to undo his 2020 defeat and two other indictments. He has pleaded not guilty in those cases as well.

The US Justice Department long has had an internal policy not to indict a sitting president, but prosecutors said no such restrictions exist once a president leaves the White House.

Trump's lawyers had made a sweeping claim that he is 'absolutely immune' from charges arising from official actions he took as president, arguing that political opponents could use the threat of criminal prosecution to interfere with a president's responsibilities.

His defense team argued that the immunity sitting US presidents have from civil lawsuits should extend to criminal charges.

Prosecutors contended that Trump's argument would essentially put the US president above the law, violating foundational principles of the Constitution.

DC appeals court also reject immunity in civil cases

In a separate ruling, the Court of Appeals for the DC Circuit court found that lawsuits Trump faces over the US Capitol riot can move forward.

But the three-judge panel said the 2024 Republican presidential primary frontrunner can continue to fight, as the cases proceed, to try to prove that his actions were taken in his official capacity as president.

Trump has said he can't be sued over the riot that left dozens of police officers injured, arguing that his words during a rally before the storming of the Capitol addressed 'matters of public concern' and fall within the scope of absolute presidential immunity.

In the criminal case, Smith's team has signaled that it will make the case at trial that Trump is responsible for the violence at the Capitol and point to Trump´s continued embrace of the January 6 rioters on the campaign trail to argue that he intended for the chaos that day.

Friday's rulings underscores the challenges facing Trump as he tries to persuade courts, and potentially juries, that the actions he took in the run-up to the riot were part of his official duties as president. 

While courts have afforded presidents broad immunity for their official acts, the judges made clear that that protection does not cover just any act or speech undertaken by a president. 

A president running for a second term, for example, is not carrying out the official duties of the presidency when he is speaking at a rally funded by his reelection campaign or attends a private fundraiser, the appeals court said.

'He is acting as office-seeker, not office-holder - no less than are the persons running against him when they take precisely the same actions in their competing campaigns to attain precisely the same office,' Judge Sri Srinivasan wrote for the court.

But the court said its decision is not necessarily the final word on the issue of presidential immunity, leaving the door open for Trump to keep fighting the issue. 

And it took pains to note that it was not being asked to evaluate whether Trump was responsible for the riot or should be held to account in court. 

It also said Trump could still seek to argue that his actions were protected by the First Amendment - a claim he´s also made in his pending criminal case - or covered by other privileges.

'When these cases move forward in the district court, he must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as president rather than in his unofficial capacity as a candidate,' the court said.