Yes, Federal Courts Have Jurisdiction in the Jan. 6th Case Against Trump

A motion to dismiss it on the basis of the “political question doctrine” would ignore the difference between legitimate exercises of government power and criminal ones.

(Photo by Chip Somodevilla/Getty Images)

ON MONDAY, U.S. DISTRICT JUDGE TANYA CHUTKAN set March 4, 2024, as the trial date for the federal case against Donald Trump on four criminal counts arising from the January 6, 2021, insurrection at the U.S. Capitol. Trump’s lawyer, John Lauro, reportedly made a slew of impassioned arguments for a much later trial date, including putting forward an ill-considered comparison to the 1931 Scottsboro Boys cases, which went to trial six days after an indictment of nine black youths falsely accused of raping two white women. He also flagged his plans to file a motion to dismiss the case for lack of “jurisdiction,” setting up a constitutional showdown that will likely wind up before U.S. Supreme Court, possibly on an immediate—or “interlocutory”—basis, given the high stakes involved for the office of the presidency itself.

Here’s Lauro:

The legal complexity, number one, is we have a very initial issue of executive immunity which we're going to raise with the Court likely this week or early next week, which is a very complex and sophisticated motion regarding whether or not this court would even have jurisdiction over this case in light of the fact that . . . the indictment essentially indicts President Trump for being President Trump and faithfully executing the laws and executing on his “take care” obligations. So we're going to have a very, very unique and extensive motion that deals with executive immunity.

Presidential immunity is a judge-made concept that is closely aligned with executive privilege. The notion is that, by vesting in the president “executive power,” and also mandating that he “take care that the laws be faithfully executed,” Article II of the Constitution inherently envisions a broad range of discretion as necessary to being able to competently carry out these core presidential powers.

The idea behind executive privilege, which President Richard Nixon unsuccessfully raised to try and keep confidential his Oval Office tapes of discussions with advisers, is that presidents need to talk to close aides without their conversations making headline news or being used as political ammunition later. Presidential immunity is broader, the idea being that presidents cannot worry about triggering civil or criminal liability when making difficult decisions. Both concepts balance the powers of the presidency on one hand with the goals and needs of the justice system on the other. Both sides of that balanced equation, in theory, are meant to serve the public.

There is no single dividing line between permissible and impermissible presidential actions under prior Supreme Court precedent, although one would hope that even the current right-leaning Court would draw it at the commission of crimes under the mantle of, and using the enormous powers of, the office. The ability to undertake a criminal enterprise with impunity cannot be part and parcel of the powers of the presidency.

To the extent Lauro is linking immunity with the concept of “jurisdiction,” however, he is either mistaken or holding another potential legal arrow behind his back—what’s known as the “political question doctrine.” In legal terms, jurisdiction refers to the core power of a court. Federal courts, for example, only have the constitutional power to hear cases involving federal issues or those involving parties from different states and a lot of money. (The Starbucks barista doesn’t have jurisdiction to hear anything.) A case filed in federal court complaining that a neighbor ran over a $3,000 bird feeder with his pickup truck will be dismissed for lack of jurisdiction because it involves two people from the same state and a picayune, Judge Judy–like claim. But a case under the United States criminal code squarely raises a federal question that gives Chutkan jurisdiction. If Trump is found to be immune from criminal liability for some or all of the conduct giving rise to the January 6th indictment, it’s because the facts are insufficient for a conviction—not because there’s no jurisdiction.

The political question doctrine, on the other hand, could theoretically be used to challenge the appropriateness of employing the power of the federal courts as opposed to that of the other two branches of the federal government. It’s another legal theory that’s completely manufactured by the Supreme Court, essentially holding that some hot-potato questions are so politically fraught that they should be resolved—if anywhere—by the political branches because those folks are electorally accountable. Federal judges are not. In this case, the argument would go, Trump’s efforts to wrest the 2020 presidential election from Joe Biden amount to a political question that the voters must decide in 2024. If voters respond to the political question by re-electing Trump instead of rejecting him, the only other available mode of redress would be for Congress to impeach him during his second term.

Of course, the latter suggestion is spurious. Trump was impeached over January 6th, but Republican senators refused to convict him on an alleged legal technicality having to do with the timing of his leaving office—and Minority Leader Mitch McConnell (R-Ky.) characterized the issue as one of jurisdiction.

Somewhat infamously, McConnell gave an impassioned speech from the Senate floor after the acquittal. His remarks bear repeating at some length in this moment (particularly given that, sadly, he appears to be operating at a diminished cognitive capacity of late and no longer able to engage with these issues fully).

Here’s McConnell:

American citizens attacked their own government. They used terrorism to try to stop a specific piece of democratic business they did not like.

Fellow Americans beat and bloodied our own police. They stormed the Senate floor. They tried to hunt down the speaker of the House. They built a gallows and chanted about murdering the vice president.

They did this because they had been fed wild falsehoods by the most powerful man on earth—because he was angry he’d lost an election.

Former President Trump’s actions preceding the riot were a disgraceful dereliction of duty. . . .

There is no question that President Trump is practically and morally responsible for provoking the events of that day. . . .

But our system of government gave the Senate a specific task. The Constitution gives us a particular role.

This body is not invited to act as the nation’s overarching moral tribunal. . . .

If President Trump were still in office, I would have carefully considered whether the House managers proved their specific charge. . . .

But in this case, that question is moot. Because former President Trump is constitutionally not eligible for conviction.

There is no doubt this is a very close question. Donald Trump was the president when the House voted, though not when the House chose to deliver the papers.

Brilliant scholars argue both sides of the jurisdictional question. The text is legitimately ambiguous. I respect my colleagues who have reached either conclusion.

But after intense reflection, I believe the best constitutional reading shows that Article II, Section 4 exhausts the set of persons who can legitimately be impeached, tried, or convicted. The president, vice president and civil officers.

We have no power to convict and disqualify a former officeholder who is now a private citizen.

McConnell instead punted to the judicial system. “We have a criminal justice system in this country. We have civil litigation,” he said. “And former presidents are not immune from being held accountable by either one.” And here we are.

If Lauro does raise the political question doctrine in a bid to dismiss the January 6th indictment, he should lose. As with executive privilege and presidential immunity, this legal framework is reserved for legitimate exercises of government power, not criminal ones. The Supreme Court has held, for example, that the conduct of foreign relations is a political question that courts should steer clear of, and in 1993 it extended the doctrine to lawsuits challenging Congress’s procedure for impeachment proceedings.

The “test” for determining whether a case involves a political question for which courts lack jurisdiction is multifaceted and dizzyingly subjective, however, and includes factors such as “the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion,” and “an unusual need for unquestioning adherence to a political decision already made.” Translated and fitted to the present context: Whether Trump should be held accountable for January 6th could be so caked with political ideology and voter preference that the justices cannot possibly come up with objective criteria on questions of criminal liability that are grounded in actual law.

But if that’s the case—if the fate of Donald Trump and the final chapter of the January 6th nightmare cannot rest in the hands of unelected justices with life tenure—who should decide it?