DOJ Says Trump Has No ‘Absolute Immunity’ in Jan. 6 Case

The U.S. Department of Justice building in Washington, on June 20, 2023. Kevin Dietsch/Getty Images

Special counsel Jack Smith’s office opposed former President Donald Trump’s motion to dismiss the Jan. 6-related case against him, filing the motion late Thursday.

Mr. Smith had been appointed special counsel last November to investigate the events of the Jan. 6, 2021, Capitol breach and related crimes, and has already brought cases against more than 1,100 citizens. President Trump has been charged with four felony counts for allegedly interfering with the 2020 elections through his actions to challenge the results.

On Oct. 5, President Trump’s legal team argued he had the absolute immunity conferred to U.S. presidents. U.S. Supreme Court cases have ruled that this immunity covers acts in the “outer perimeter” of official duties.

The Department of Justice (DOJ) responded that President Trump has no such “absolute immunity.”

“The defendant is not above the law,” the government argues throughout its response, describing the motion to dismiss as “novel” and “expansive” in its reading of the law.

“In staking his claim, he purports (Mot. 29) to draw a parallel between his fraudulent efforts to overturn the results of an election that he lost and the likes of Abraham Lincoln’s Gettysburg Address and George Washington’s Farewell Address. These things are not alike,” the filing continues.

The government has repeatedly argued that the former president knowingly tried to overturn “legitimate results” in the 2020 elections, and such criminal conspiracy negate the defenses he has raised, while President Trump, who has pleaded not guilty, maintains that he did nothing wrong, and sought to investigate what he believed was fraud in the 2020 elections.

Absolute Immunity?

The DOJ argued that presidential immunity did not extend to former presidents.

“An individual who has served as president of the United States, but is no longer in office, may face investigation, indictment, trial, and, if convicted, punishment for conduct committed during the presidency,” the filing reads.

However, the Supreme Court ruling in the 1982 case Nixon v. Fitzgerald extended the “absolute” immunity of a president to the “outer perimeters” specifically to prevent presidents from being sued personally for the decisions in office. The reasoning was that it would diminish the Office of the President of the United States, if one could serve in office, and leave only to find a barrage of legal action against oneself.

President Trump now faces exactly that: several civil lawsuits, in addition to the four criminal cases against him for actions he took in his last days as president. Further, federal judges in Washington, D.C., have not agreed to dismiss the civil cases on the grounds of presidential immunity.

It remains to be seen whether the criminal case will be dismissed, but seems unlikely as Judge Tanya Chutkan, overseeing the case Mr. Smith is prosecuting, has rejected other motions from President Trump, including a motion requesting her recusal.

“No court has ever alluded to the existence of absolute criminal immunity for former presidents, and legal principles, historical evidence, and policy rationales demonstrate that once out of office, a former president is subject to federal criminal prosecution like other citizens,” the DOJ argued in its opposition.

It pointed to the impeachment proceedings against President Trump as further evidence he was not completely immune to prosecution.

The government also pointed out that immunity to civil lawsuits would not prevent criminal cases from proceeding either, and described a hypothetical example where “a president who orders the National Guard to murder his most prominent critics” and argues he was “discharging his powers as commander-in-chief” as comparable to President Trump’s argument for dismissal.

“No immunity should shield the defendant from federal prosecution for criminal conduct undertaken while he served as president,” the government argued.

Motion to Dismiss

President Trump’s lawyers had argued that the “incumbent” Biden administration was breaking 234 years of tradition in prosecuting the former president in this case. They claimed the actions Mr. Trump is being charged with were not even acts on the “outer perimeter” of his duties, “but at the heart of his official responsibilities as president.”

“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,” the motion reads.

Much like a similar criminal case against President Trump in Georgia, this case will eventually need to prove President Trump’s state of mind and motivation of his actions in the indictment. Prosecutors argue that President Trump acted with corrupt intention, while President Trump has repeatedly claimed he worked to preserve election integrity. The corrupt intention and conspiracy would negate his standard defenses like the First Amendment.

President Trump has also repeatedly called the prosecutions a “witch hunt” and “election interference” as he is campaigning to run for president again in 2024. Next year promises a busy court schedule, as civil cases will begin in January, and this election case will be tried in March.