Trump asks Court of Appeals to dismiss election case on grounds of immunity

Lawyers for former President Donald J. Trump asked a Washington appeals court on Saturday evening to file a federal indictment accusing him of plotting to overturn the 2020 election, arguing that he was immune from the accusations because they stemmed from actions he took while he was in the White House.

The weekend filing in the U.S. Court of Appeals for the District of Columbia Circuit was the latest salvo in a long-running and pivotal battle between Mr. Trump and the special counsel, Jack Smith, over whether the former president has immunity from the election interference. cost.

The battle over immunity has now touched all three levels of the federal court system, including the Supreme Court, which on Friday denied Mr. Smith’s request to intervene and hear the case before the appeals court. The ultimate resolution of the issue will have a significant impact not only on the overall viability of the election interference case, but also on whether a trial on the charges is postponed until the heart of the 2024 campaign – or even beyond elections. If Mr. Trump becomes president at that time, he could order the charges to be dropped.

In a 55-page letter to a three-judge panel of the court, D. John Sauer, a lawyer who has handled appeals for Mr. Trump, argued that under the Constitution, judges cannot hold the president responsible for actions taken while in the office.

“Under our system of separated powers, the judiciary cannot rule on a president’s official actions,” Sauer wrote, adding, “That doctrine is not controversial.”

But the fact that this issue was discussed on appeal naturally suggested that this issue was at the center of a hotly contested controversy.

When Mr. Trump initially filed his motion to dismiss the election interference case, his lawyers essentially tried to turn the narrative in Mr. Smith’s indictment on its head.

Prosecutors allege that Mr. Trump broke the law by, among other things, trying to strong-arm state lawmakers in power and pressuring Justice Department officials to validate his claims that the election was marred by fraud.

While prosecutors characterized these moves as crimes, Mr. Trump’s lawyers sought to reframe them as examples of the former president fulfilling his official duty to protect the integrity of the election.

In his letter to the appeals court, Mr. Sauer argued that there should be executive immunity, given that no president or former president before Mr. Trump has ever been charged with a crime.

“The unbroken tradition of not exercising the supposedly formidable power of criminally prosecuting a president for official acts – despite the many motives and opportunities to do so over the centuries – implies that that power does not exist,” wrote he.

Mr. Sauer further alleged that the judge, Tanya S. Chutkan, erred in several ways when she decided the issue against Mr. Trump early this month. In an order rejecting Mr. Trump’s immunity claims, Judge Chutkan upheld a narrow view of presidential power, writing that there was nothing in America’s Constitution or founding documents to support the idea that a former commander in chief should not be subject to federal criminal law. .

For example, Judge Chutkan had argued that Mr. Trump should not enjoy “a lifetime get-out-of-jail pass,” and that despite his past role as president, he should still be “subject to federal rules.” investigation, indictment, prosecution, conviction and punishment for all criminal acts committed during his term of office.”

But Mr. Sauer insisted that executive immunity was not so much intended to protect a president — or a former president — from legal liability, but rather to prevent a leader from falling prey to false accusations from political enemies. He also said the only way a former president could be prosecuted would be if he had first been impeached by Congress and convicted of similar crimes.

The immunity case will be heard by a panel of judges Karen L. Hendersonwho was appointed by President George HW Bush, and judges Florence Y. Pan And J.Michelle Childs, both of whom were appointed by President Biden.

The judges have agreed to work exceptionally quickly and set an accelerated timetable for the case at Mr Smith’s request. All written documents must be submitted before January 2. The court plans to hold oral arguments on January 9.

The fact that the court ordered Mr. Trump’s lawyers to file their papers on the Saturday before Christmas itself indicates how quickly the appellate judges plan to act. Mr. Smith’s office will file its own paperwork in the case the Saturday before New Year’s Eve.

The battle between the defense and the prosecution over the speed of the appeal has been just as – if not more – controversial than the battle over the underlying legal issues. That’s largely because Judge Chutkan has put the case on hold while the appeal is heard, putting the trial’s current start date of March 4 in jeopardy.

If the trial were postponed in the summer, it would coincide with the return trip of Trump’s presidential campaign. Required to be in Washington every weekday for two or three months, the former president would almost certainly take his campaign to the courthouse steps, making the proceedings even more of a media circus than it already promises to be.

The schedule of the election subversion trial in Washington could also have a significant impact on the timing of Trump’s three other criminal cases. It was a challenge to find time in the calendar for each of the procedures in relation to each other, but also against the background of the campaign.

In addition to the trial in Washington, Mr. Trump also faces a trial in Manhattan on charges related to hush-money payments to a porn actress in the run-up to the 2016 election; in Florida on charges of illegally withholding dozens of classified documents after leaving office; and in Georgia, where a racketeering indictment accuses him of tampering with that state’s elections.

While Mr. Smith’s prosecutors have never explicitly expressed concerns about that scenario, or the scenario in which Mr. Trump becomes president and has the charges dropped, they have tried to use every tool at their disposal to keep the trial on track hold.

One of their boldest moves was their request last week for the Supreme Court to bypass the appeals court and return its own quick decision on the immunity issue. Although the judges declined to hear the case for now, they may get a second opportunity to hear the case after the appeals court makes a decision.