Lawyers for former President Donald Trump asked a Washington, DC, federal judge on Thursday to throw out his indictment in connection with the Jan. 6, 2021, Capitol riot based on presidential immunity, according to new court filings.
The Trump attorneys petitioned US District Judge Tanya Chutkan in a 46-page motion to dismiss the four-count indictment with prejudice, citing constitutional protections and federal case precedents.
“To ensure the President may serve unhesitatingly, without fear that his political opponents may one day prosecute him for decisions they dislike, the law provides absolute immunity ‘for acts within the “outer perimeter” of [the President’s] official responsibility,’” attorneys Todd Blanche, John Lauro, Gregory Singer and Filzah Pavalon wrote.
The attorneys said those acts include Trump’s statements, social media posts and communications with the Justice Department about alleged fraud contributing to his 2020 election loss.
They also include conversations with state officials about plans to introduce slates of alternate electors and with then-Vice President Mike Pence about his authority to decertify 2020 ballots in Congress.
“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.”
The Trump lawyers also disputed a central charge of the indictment — that the former president made “knowingly false” claims about voter fraud — despite former White House staff testifying to the contrary.
“But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide,” they wrote.
A ruling by Chutkan would have profound implications, potentially determining for the first time that a president could be entirely immune from criminal prosecution for any act deemed official.
It could also lead to further motions in favor of Trump’s immunity in Georgia, where he faces 13 counts for attempting to overturn 2020 election results.
In the 1982 case Nixon v. Fitzgerald, the Supreme Court found that government officials in their duties were immune from civil but not criminal actions, the former president’s attorneys noted.
Further, Trump’s attorneys argue the Impeachment Clause of the Constitution makes impeachment in the House and conviction by the Senate the only avenue for litigating potential crimes committed by a president.
“Because the Constitution specifies that only ‘the Party convicted’ by trial in the Senate may be ‘liable and subject to Indictment, Trial, Judgment and Punishment,’ id., it presupposes that a President who is not convicted may not be subject to criminal prosecution,” they said.
Trump was impeached by the House, 232-197, with 10 Republicans joining 222 Democrats in support of holding him accountable for his actions that culminated in the Jan. 6, 2021, Capitol riot.
But the Senate acquitted the former president after failing to reach a two-thirds majority in support of conviction.
Other Supreme Court case precedents — including Marbury v. Madison and Martin v. Mott — also uphold the claim that the Constitution provides the exclusive means to prosecute a US president, according to the attorneys’ motion.
Trump, 77, faces 91 counts across four indictments that have been handed down in the past year — the first sitting or former president to face such charges.
If convicted on all counts, he would face a maximum of 712 years and six months in federal prison.
The former president remains the frontrunner for the Republican presidential nomination by double-digit margins, setting up a potential 2020 election rematch between himself and President Biden.