Trump Reasserts Presidential Immunity in Federal Election Case

Former President Donald Trump delivers remarks during the Georgia state GOP convention at the Columbus Convention and Trade Center in Columbus, Ga., on June 10, 2023. (Anna Moneymaker/Getty Images)

Former President Donald Trump’s legal team responded to prosecutors’ arguments that the defense of presidential immunity would put President Trump above the law, stating that following this precedent would merely “return us to the sensible process envisioned by the founders, where the People’s representatives in Congress—not an unelected prosecutor—first decide whether a President’s official actions are worthy of sanction and potential criminal liability.”

The former president had filed a motion to dismiss the case on Oct. 5, claiming the absolute immunity conferred to a U.S. president as outlined in the ruling of Nixon. v. Fitzgerald. Prosecutors argued that such an argument put President Trump above the law, as no one, even the president of the United States, should escape prosecution for serious crimes. The indictment against President Trump alleges crimes that depend on the state of mind, that he sought to defraud through “dishonesty, fraud, and deceit” in the aftermath of the 2020 elections, while President Trump maintains that he sought to investigate allegations of fraud in the 2020 elections.

In the new response, attorneys argued that the prosecutors misunderstand the scope and purpose of presidential immunity.

Presidential Immunity From Criminal Prosecution

The attorneys note that presidential immunity is not a clear-cut issue, with many questions “not yet resolved by the Supreme Court or any Circuit,” because prosecutors have thus far not brought up the issue.

“As the Supreme Court held in Nixon v. Fitzgerald, the President must have the ability to make decisive—and often unpopular— decisions regarding matters of public concern,” the filing reads.

To allow the president to be sued for his actions in office would “require the President to hesitate at every turn, conscious of the very real threat that one of many hundreds of prosecutors around the country may one day question his motives and seek to imprison him for his actions as President,” they argued.

They also argued that preventing criminal prosecution for official acts does not put the president “above the law,” because the proper process to indict a president should come from Congress.

President Trump had been impeached, and then acquitted, twice by Congress.

Prosecutors argued this stripped him of presidential immunity from criminal prosecution. Defense attorneys argued in the new filing that this is not the case.

“The text of the Constitution—namely the Impeachment Judgment Clause—straightforwardly supports Presidential immunity from criminal prosecution absent conviction in the Senate,” the new filing reads. “A convicted party is liable to criminal prosecution. Thus, a President who is not ‘convicted’ is not liable.”

The Nixon v. Fitzgerald ruling that clarified presidential immunity said as much, they argued, as it specifically pointed to the impeachment process as the proper venue to indict a president:

“A rule of absolute immunity for the President will not leave the Nation without sufficient protection against misconduct on the part of the Chief Executive. There remains the constitutional remedy of impeachment.”

Other Motions to Dismiss

On Oct. 23, President Trump’s team filed an additional three motions to dismiss the case on statutory grounds, on constitutional grounds, and for “selective and vindictive prosecution.” Another motion was filed to strike inflamatory allegations from the indictment.

The attorneys argued that the original indictment makes repeated references to people who participated in the Jan. 6, 2021, Capitol breach event, without charging President Trump as responsible for those actions.

“The public has high awareness of, and strong views regarding, the actions at the Capitol on January 6, 2021,” the filing reads. “Allegations in the indictment relating to these actions, when President Trump has not been charged with responsibility for them, is highly prejudicial and inflammatory because members of the jury may wrongfully impute fault to President Trump for these actions.”

The motion came after a gag order was issued for President Trump, preventing him from making statements about individuals including the prosecutors and potential witnesses after prosecutors had argued that his “inflammatory” remarks could bias jurors.

This claim of prejudice was echoed in the other motions to dismiss, which make clear that the defense believes the case is politically motivated.

“Biased prosecutors pursued charges despite the evidence, rather than based on it, with one prosecutor violating DOJ rules and ethical norms by forecasting the investigation in a television interview on ‘60 Minutes,’” the motion read.

They noted that President Joe Biden had stated in a press conference, “We just have to demonstrate that he will not take power” in referring to President Trump.

“Three days after President Trump formally announced his candidacy, the Special Counsel was put in place as part of a flawed effort to insulate Biden and his supporters from scrutiny of their obvious and illegal bias,” the motion reads, arguing that the sequence of events “demonstrates vindictiveness.”

Attorneys further argued in a separate motion that the prosecutors do not show evidence that President Trump violated the statutes he is accused of violating in the indictment.

“Targeting an audience other than this Court, the prosecution’s indictment in this matter rants endlessly about President Trump’s politics and—in a shockingly un-American display of authoritarianism—accuses him of crimes for having and expressing the “wrong” opinions,” the motion to dismiss reads.

In arguing that the case has no constitutional standing, attorneys wrote that the prosecutors’ arguments and indictment violate the First Amendment and due process laws. The indictment had stated that because there was no “outcome-determinative fraud in the election,” and because President Trump had been told his worries were untrue by other government officials, his acts to investigate the election constituted as fraud.

“The First Amendment embraces and encourages exactly this kind of behavior,” the motion reads. “Additionally, as the United States Senate has previously tried and acquitted President Trump for charges arising from the same course of conduct alleged in the indictment, the impeachment and double jeopardy clauses both bar retrial before this Court and require dismissal.”