Special counsel urges judge to deny Trump’s Jan. 6 claim of immunity
“No court has ever alluded to the existence of absolute criminal immunity for former presidents,” assistant special counsel James I. Pearce wrote in a 54-page filing. The filing argued that legal principles, historical evidence and sound policy reasons establish that once former presidents leave office, they are subject to federal criminal prosecution “like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens.”
Trump lawyers John Lauro and Todd Blanche moved to toss out his indictment Oct. 5, claiming that the Constitution, Supreme Court, and hundreds of years of history and tradition made clear that a president’s motivations were not for prosecutors or courts to decide, but that where “the President’s actions are within the ambit of his office, he is absolutely immune from prosecution.”
In a dense response with eight pages of legal citations, prosecutors argued that that claim turned the law on its head, just as they said it drew a false parallel “between [Trump’s] 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,” adding dryly, “These things are not alike.”
Instead, they said the Constitution’s separation of powers principle should apply to presidents like it does to judges, who enjoy absolute immunity from civil damages liability for certain conduct in office, but remain subject to criminal laws.
“The indictment alleges that the defendant acted deceitfully or corruptly to secure a personal benefit to himself as a presidential candidate, not to carry out constitutional obligations entrusted to the presidency,” prosecutors said. “Immunity should not foreclose the Government from shouldering the burden to prove those demanding standards beyond a reasonable doubt at trial.”
Trump has pleaded not guilty to a four-count indictment accusing him of a criminal conspiracy to remain in power, obstruct Congress’s lawful certification of Joe Biden’s 2020 election victory, and deprive Americans of their civil right to have their votes counted. Trump and his lawyers have accused the Biden administration of targeting Biden’s chief political rival and front-runner for the 2024 GOP presidential nomination, maintaining that Trump acted within the bounds of the presidency to seek to overturn the 2020 results.
In seeking to toss his case they also argued that just as courts have barred lawsuits against U.S. presidents for actions taken within “the outer perimeter of their official duties,” the same principle should apply to criminal prosecution. They suggested the Supreme Court should take up the question, a legal battle that if joined could postpone his scheduled March 4 trial before U.S. District Judge Tanya S. Chutkan that Trump has sought to push back to after next November’s election.
“No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act,” the lawyers wrote, arguing that Congress’s failed impeachment of Trump was the proper venue to decide Trump’s guilt or innocence.
Prosecutors said Trump’s claim directly conflicts with the Constitution, which explicitly provides that presidents impeached and removed from office can be criminally prosecuted for the same conduct. During his impeachment trial, Trump argued as much, saying he could be prosecuted later if the Senate acquitted him, which it did, special counsel Jack Smith’s team wrote.
Trump “would turn the Impeachment Judgment Clause on its head and have the Court read it as a sweeping grant of immunity that forbids criminal prosecution in the absence of a Senate conviction — which, among other things, would effectively preclude any form of accountability for a president who commits crimes at the end of his term of office,” prosecutors wrote.
To the contrary, they argued that the clause was meant to limit Congress’s power to removing and disqualifying presidents from office, not to preclude the prosecution of those who escaped removal. They added that temporary legal shield enjoyed by presidents while in office and the ongoing protection they retain from civil liability for official acts once they leave are both premised on the backstop of the availability of accountability for criminal conduct, citing a range of sources including Founding Father Alexander Hamilton’s writings in the Federalist Papers and President Gerald Ford’s full pardon of his predecessor Richard M. Nixon for any offenses committed during his presidency.
Finding otherwise would be “startling,” prosecutors wrote — freeing from the threat of prosecution a president who accepts a bribe in exchange for a lavish contract for a family member; instructs the FBI director to plant evidence on a political enemy; orders the National Guard to murder his critics; or sells nuclear secrets to a foreign adversary. A president could act with particular impunity in a second term to “benefit himself, endanger the republic, or both,” a perverse outcome when Trump is accused of a criminal conspiracy to remain in office, Pearce wrote.
Even accepting Trump’s argument, prosecutors said his alleged crimes did not occur within his official duties but were undertaken as a candidate abusing the public trust. The indictment casts Trump as a habitual liar and sore loser who spewed false claims about purported voter fraud in the 2020 election and then used deceit and lies to try to get state, local and federal officials to change the results to the point of violence in the Jan. 6, 2021, attack on the Capitol.
The case is one of four felony prosecutions Trump faces, including a state trial in Georgia that involves similar allegations of trying to obstruct the state’s election results; a federal indictment in Florida over Trump’s alleged retention and mishandling of classified documents and obstruction after leaving the White House; and a New York state business fraud prosecution accusing Trump of covering up hush money payments made during the 2016 election campaign.