The 52-page filing came as Trump also sought the dismissal of his criminal indictment in New York on charges stemming from hush money payments to a porn star.
Trump’s immunity arguments in the federal case represent his most forceful rebuttal of Smith’s indictment, which alleges that Trump, despite knowing he lost the election, mounted a sweeping disinformation campaign to drive up pressure on states and then-Vice President Mike Pence to use their power to subvert the election process. That effort culminated in a violent assault on the Capitol, when a mob of Trump supporters breached the building in hopes of preventing Congress from certifying Joe Biden’s victory. The case is scheduled to go to trial on March 4.
Trump’s counterattack, which his attorneys previewed at an August hearing, suggests that prosecutors’ case is really about distinct powers that the president has: communicating with the public, organizing his administration, talking to Congress, enforcing election laws and ensuring the Constitution is faithfully executed. Whether Trump genuinely believed that the election was stolen — which his attorneys say he did — is irrelevant in assessing his immunity from prosecution, they argue.
“This conduct is manifestly part of the President’s responsibilities in our constitutional tradition, and the question whether the President has a formal role in the election certification process makes no difference,” the attorneys wrote.
Prosecutors, however, say Trump’s single-minded bid to retain power despite losing the election veered into criminality and he used the powers of his office to further the scheme.
Trump’s attorneys say there’s an even more fundamental problem with the charges against him: He was acquitted by the Senate in an impeachment trial for similar conduct. That acquittal, they say, renders Trump “absolutely immune” from prosecution for related acts.
“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,” the attorneys wrote. “Here, President Trump was acquitted by the Senate for the same course of conduct.”
The Senate acquitted Trump despite a 57-43 majority favoring his conviction because of a two-thirds requirement in the Constitution. At the time, Trump was charged with one count — inciting insurrection — related to his speech to a rally crowd that later became the mob that stormed the Capitol on Jan. 6, 2021. The impeachment trial came just a month after the attack — and shortly after Trump had left office. Much of the evidence underlying Smith’s indictment — related to Trump and his allies’ conduct before Jan. 6 — was not publicly known at the time of the impeachment trial.
Notably, Senate GOP Leader Mitch McConnell defended his vote to acquit Trump at trial by arguing that the criminal justice system and courts were a more proper venue to seek accountability.
“We have a criminal justice system in this country,” McConnell said at the time. “We have civil litigation. And former presidents are not immune from being held accountable by either one.”