Trump's attorneys seek dismissal of federal election charges on presidential immunity grounds

October 6, 2023
Ben Marquis

Former President Donald Trump was charged criminally by Special Counsel Jack Smith about various post-2020 election actions then-President Trump took to challenge the reported results.

In an anticipated move, Trump's attorneys have now filed a motion to have those charges completely dismissed because Trump was and is protected by presidential immunity from prosecution, Breitbart reported.

The crux of the argument is that all of the charges relate to actions Trump took in furtherance of his federal duties and that the only way he could be criminally charged for his actions as president is if he had first been convicted and removed from office via an impeachment trial -- which was attempted but resulted in an acquittal.

The former president is "absolutely immune from prosecution"

"Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the 'outer perimeter,' but at the heart of his official responsibilities as President," the motion to dismiss stated. "In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties."

"Instead, the prosecution falsely claims that President Trump’s motives were impure -- that he purportedly 'knew' that the widespread reports of fraud and election irregularities were untrue but sought to address them anyway," Trump's attorneys continued. "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.

"Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution," the motion added. "Therefore, the Court should dismiss the indictment, with prejudice."

Arguments in support of broad interpretation of presidential immunity

The Associated Press reported that former President Trump's attorneys have long signaled that they intended to seek a dismissal of the federal election-related criminal indictment on the basis of presidential immunity, and have further signaled a willingness to take the fight all the way to the Supreme Court if necessary to fully answer the admittedly unsettled question of whether presidential immunity from civil liability also extends to alleged criminal liability.

"No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act. The question remains a 'serious and unsettled question' of law," the attorneys wrote. "In addressing this question, the Court should consider the Constitution’s text,
structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines, and considerations of public policy."

In the motion, Trump's lawyers laid out the main categories of the elements of the allegations against the former president -- including public statements and communications with others about the election and efforts taken to challenge the results -- and argued that all such actions were part of his official duties as president and therefore were covered by the purposefully broad presidential immunity.

"Every action of the Defendant charged in the indictment occurred while he was still in office as President of the United States, and, according to the prosecution, all concerned a federal government function," the lawyers wrote. "Given the all-consuming nature of the Presidency, these facts alone strongly support the notion that the indictment is based solely on President Trump’s official acts."

They further argued that the only constitutional remedy allowed for alleged criminal acts committed by a president was the impeachment process and went on to show that "The Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Here, President Trump was acquitted by the Senate for the same course of conduct."

"In January 2021, he was impeached on charges arising from the same course of conduct at issue in the indictment," the attorneys added. "President Trump was acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution. The Special Counsel cannot second-guess the judgment of the duly elected United States Senate."

Special Counsel will oppose motion, appeals likely inevitable

In addition to the direct text of the U.S. Constitution, Trump's attorneys also heavily cited passages from the Federalist Papers, several prior court rulings dealing with presidential immunity, and other forms of immunity for federal officials to bolster their case that the former president was and continues to be immune from prosecution for actions that occurred while he was president.

The motion noted that the special counsel has already signaled that this request for dismissal on presidential immunity grounds will be opposed, though it is unclear when a formal reply brief to the motion will be filed with District Judge Tanya Chutkan, nor is there any indication how long she will take to rule on that matter, much less the timeline of an inevitable appeals process that will be launched by either side regardless of how she ultimately rules.

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