Washington — Former President Donald Trump on Thursday asked a federal court in Washington, D.C., to dismiss the indictment alleging he illegally attempted to thwart the transfer of presidential power after the 2020 presidential election.
The 52-page filing from lawyers John Lauro and Todd Blanche argues that Trump has presidential immunity from prosecution for actions performed within the “outer perimeter” of his official responsibility.
“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,” they wrote. “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.”
Trump faces four charges brought by special counsel Jack Smith related to his actions surrounding the 2020 election and has pleaded not guilty.
The special counsel’s office declined to comment.
The new motion argues the conduct for which Trump was charged — largely that he allegedly worked to resist the results of the 2020 presidential election and conspired to defraud the U.S. with 6 unnamed co-conspirators — was performed not just as a candidate for the presidency, but also as the sitting president, a distinction that the attorneys said shields him from prosecution.
Trump’s attorneys stipulated the former president “emphatically denies the truth of any allegations in the indictment.”
The motion to dismiss the indictment was not unexpected, as Lauro said publicly after Trump was indicted in August that he would seek to have the charges thrown out. Still, it provides the first thorough look at the arguments from his legal team.
Whether a one-time president can be charged for conduct committed while in office related to presidential acts, the Trump legal team wrote, remains a “serious and unsettled question” and they argued U.S. District Judge Tanya Chutkan, who is overseeing the case, should deem the charges unlawful as they involve actions Trump carried out as the nation’s chief executive.
“234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former President for his official acts does not exist,” the attorneys wrote.
Despite their client no longer holding public office, Trump’s legal team argued the unique and sensitive nature of the job requires that the president not be mixed up with threats of legal action. Such immunity, they contended, encompasses all of the conduct that is alleged in the special counsel’s indictment, from discussions about the election to tweets with unfounded claims of widespread voter fraud and meetings with Justice Department and state officials about the matter.
“Ensuring the integrity of federal elections falls within the President’s official duty,” they wrote. “Similarly, taking steps to ensure that fraud and other irregularities do not vitiate the outcome of a federal election also falls within the President’s responsibility.
In his August indictment, special counsel Jack Smith appeared to have anticipated this argument, writing that Trump had the right to challenge the election and raise issues of concern with the courts, which he did unsuccessfully. But Smith also alleged that Trump went beyond those lawful means, “discounting legitimate votes and subverting the election results” in criminal conspiracies to allegedly devoid the American public of its right to lawfully elect the president and obstruct Congress’ work on Jan. 6, when lawmakers convened to certify Electoral College votes.
Lauro and Blanche also argued that the only method of proceeding against a president for crimes committed while in office is impeachment by the House and conviction by the Senate. Trump was impeached by the House in January 2021 on a single article of incitement of insurrection related to his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol, but was acquitted by the Senate.
Citing his acquittal, Trump’s lawyers argued “he thus remains immune from prosecution,” and said the special counsel “cannot second-guess the judgment of the duly elected United States Senate.”
The former president’s defense team contended that public policy “overwhelmingly” supports a finding of immunity, and warned the threat of criminal prosecution would have a chilling effect on the decision-making of presidents.
“The threat of criminal prosecution poses a greater risk of deterring bold and unhesitating action than the threat of civil suit, and, therefore, requires at least the same immunity to ensure the President maintains the ‘maximum ability to deal fearlessly and impartially with the duties of his office,'” they wrote.
A key component of Smith’s indictment against the former president centers around his alleged actions as a candidate for office, but the attorneys wrote Thursday that Trump’s “dual character” as president and candidate during the 2020 election cycle “still lies within the ‘outer perimeter’ of his official responsibilities and is immune from prosecution.”
Trump has in prior court fights waged while he was in office argued that he has absolute immunity from criminal proceedings, notably as part of his efforts to shield his financial records from congressional and local investigators.
In a case involving a grand-jury subpoena issued by then-Manhattan District Attorney Cy Vance in 2019, Trump argued the Constitution granted him immunity from demands for records and testimony by local authorities. The Supreme Court, however, ruled in July 2020 that Vance could obtain the business records.
In an opinion written by Chief Justice John Roberts, the majority concluded that “no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding.”
“We reaffirm that principle today and hold that the president is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need,” Roberts wrote.
For her part, Chutkan had previously ruled against a claim of executive privilege Trump asserted over his White House records in an attempt to shield them from the now-defunct House Select Committee investigating the Jan. 6 Capitol attack. Trump sued the committee and the National Archives and Records Administration in an attempt to halt the transfer of his records, citing the privilege.
Although involving different legal theories, Chutkan dismissed Trump’s claims of privilege, writing, “Presidents are not kings, and Plaintiff is not President.”
