Chutkan also rejected Trump’s claims that the indictment violates the former president’s free speech rights. Lawyers for Trump had argued that he was within his First Amendment rights to challenge the outcome of the election and to allege that it had been tainted by fraud, and they accused prosecutors of attempting to criminalize political speech and political advocacy.
But Chutkan said “it is well established that the First Amendment does not protect speech that is used as an instrument of a crime.”
“Defendant is not being prosecuted simply for making false statements ... but rather for knowingly making false statements in furtherance of a criminal conspiracy and obstructing the electoral process,” she wrote.
An attorney for Trump declined to comment.
Her ruling comes the same day the federal appeals court in Washington ruled that lawsuits brought by Democratic lawmakers and police officers who have accused Trump of inciting the US Capitol riot on January 6, 2021, can move forward.
The appeals court in that case rejected Trump’s sweeping claims that presidential immunity shields him from liability, but left the door open for him to continue to fight, as the cases proceed, to try to prove that his actions were taken in his official capacity as president.
Trump’s legal team had argued the criminal case, which is scheduled to go to trial in March, should be dismissed because the 2024 Republican presidential primary front-runner is shielded from prosecution for actions he took while fulfilling his duties as president. They assert that the actions detailed in the indictment — including pressing state officials on the administration of elections — cut to the core of Trump’s responsibilities as commander in chief.
The Supreme Court has held that presidents are immune from civil liability for actions related to their official duties, but the justices have never grappled with the question of whether that immunity extends to criminal prosecution.
The Justice Department has also held that sitting presidents cannot be prosecuted. Trump’s lawyers are trying to ensure that same protection to a former president for actions taken while in office, asserting that no prosecutor since the beginning of American democracy has had the authority to bring such charges.
“Against the weight of that history, Defendant argues in essence that because no other former Presidents have been criminally prosecuted, it would be unconstitutional to start now,” Chutkan wrote. “But while a former President’s prosecution is unprecedented, so too are the allegations that a President committed the crimes with which Defendant is charged.”
Special counsel Jack Smith’s team has said there is nothing in the Constitution, or in court precedent, to support the idea that a former president cannot be prosecuted for criminal conduct committed while in the White House.
“The defendant is not above the law. He is subject to the federal criminal laws like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens,” prosecutors wrote in court papers.
It’s one of four criminal cases Trump is facing while he seeks to reclaim the White House in 2024.
Smith has separately charged Trump in Florida with illegally hoarding classified documents at his Mar-a-Lago estate after he left the White House. Trump is also charged in Georgia with conspiring to overturn his election loss to Biden. And he faces charges in New York related to hush-money payments made during the 2016 campaign.
