Trump Seeks Dismissal of Federal Election Case, Claiming Immunity

Donald Trump’s lawyers asked a judge to throw out charges that he conspired to overturn the 2020 election, arguing that a president could not be criminally prosecuted for official acts.

Lawyers for former President Donald J. Trump asked a judge on Thursday to throw out a federal indictment accusing him of conspiring to overturn the 2020 election and claimed that because the charges relate to actions he took as president, he should be “absolutely immune from prosecution.”

The request to dismiss the election interference indictment, which came in a 52-page briefing filed in Federal District Court in Washington, was breathtaking in its scope. It argued that Mr. Trump could not be held accountable in court for any actions he took as president, even after a grand jury had returned criminal charges against him.

While the Justice Department has long maintained a policy that sitting presidents cannot be indicted, Mr. Trump’s bid to claim total immunity from prosecution was a remarkable attempt to extend the protections afforded to the presidency in his favor.

His motion to dismiss was certain to result in a pitched legal battle with prosecutors in the office of the special counsel, Jack Smith, if only because the idea that a president cannot be  rosecuted for actions undertaken in his official capacity as commander in chief has never before been tested.

The motion, which will be considered by Judge Tanya S. Chutkan, was also the first — but likely not the last — attempt by Mr. Trump’s lawyers to attack the charges in the election interference case directly.

Until now, the lawyers have largely waged a series of unsuccessful procedural battles, seeking, and failing, to push back the trial until 2026 and to disqualify Judge Chutkan.

In his filing, John F. Lauro, a lawyer for Mr. Trump, immediately sought to reframe the core of Mr. Smith’s case. He argued that the former president’s repeated lies that widespread fraud had marred the vote count and other steps he took to subvert the normal course of the democratic process were, in fact, “efforts to ensure election integrity.”

Those efforts, Mr. Lauro argued, were “at the heart of” Mr. Trump’s “official responsibilities as president” and so should not be subject to criminal charges.

“Here, 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,” Mr. Lauro wrote. “No prosecutor, whether state, local or federal, has this authority; and none has sought to exercise it until now.”

Over and over in his motion, Mr. Lauro sought to flip the story told by the indictment and portray the various steps that Mr. Trump took to subvert the election as official acts designed to protect its integrity.

John F. Lauro, a lawyer for Mr. Trump, argued that the charges in a federal indictment

were related to Mr. Trump’s actions while president, which should be “absolutely

immune from prosecution.” Jim Lo Scalzo/EPA, via Shutterstock.

The indictment detailed, for example, how Mr. Trump tried to enlist the Justice Department in validating his claims of fraud. It set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won states he actually lost. And it documented how he waged a campaign to persuade his own vice president, Mike Pence, to unilaterally declare him the victor in the race during a certification at the Capitol on Jan. 6, 2021.

But all of these actions, Mr. Lauro wrote, fell within the scope of Mr. Trump’s “official duties” as president and so were “immune from criminal prosecution.”

Only a handful of precedents exist that could help guide Judge Chutkan in making a decision about such broad claims of immunity, and none are perfectly on point.

In 1982, the Supreme Court ruled by a 5-to-4 margin that former President Richard M. Nixon was absolutely immune from a civil suit arising from his official actions. But while Mr. Lauro cited that case, Nixon v. Fitzgerald, extensively in his filing, the reasoning in its majority opinion did not address whether presidential actions could be prosecuted as crimes.

Before he was appointed as Mr. Trump’s final attorney general, William P. Barr wrote an apparently unsolicited memo claiming that presidents could not be charged with crimes for abusing their official powers.

The memo was ultimately given to the lawyers defending Mr. Trump in the investigation into Russian election interference led by the special counsel, Robert S. Mueller III. In it, Mr. Barr concluded that Mr. Mueller should not be permitted to investigate Mr. Trump for obstruction of justice.

This summer, the Justice Department announced it would no longer argue that Mr. Trump’s derogatory statements about the writer E. Jean Carroll were made as part of his official duties as president. A few months earlier, Ms. Carroll had won $5 million in damages in a trial accusing Mr. Trump of sexual abuse and defamation over comments he made after he left the White House. She is now trying to push forward a separate lawsuit over comments that he made while president.

Last month, a judge in Atlanta rejected an attempt by Mark Meadows, Mr. Trump’s former White House chief of staff, to move a case accusing him and others, including Mr. Trump, of tampering with the election in Georgia from state court to federal court.

Mr. Meadows had also sought to claim immunity against the charges. But the judge overseeing the case ruled that the steps he took in helping Mr. Trump overturn the election were not part of his official White House duties, but were instead political efforts to help Mr. Trump get re-elected.

Alan Rozenshtein, a former Justice Department official who teaches at the University of Minnesota Law School, said the key question facing Judge Chutkan would be whether to accept Mr. Trump’s attempt to reframe the accusations as presidential acts that were beyond the scope of prosecution.

It was a shrewd legal gambit, Mr. Rozenshtein said, because it played off a legitimate presidential duty under the Constitution: to faithfully execute federal law.

“He will lose,” Mr. Rozenshtein said. “But he is making the correct conceptual argument.”

Alan Feuer covers extremism and political violence for The New York Times, focusing on the criminal cases involving the Jan. 6 attack on the Capitol and against former President Donald J. Trump. More about Alan Feuer…
Charlie Savage writes about national security and legal policy. He has been a journalist for more than two decades. More about Charlie Savage …