Former President Donald Trump’s legal team urged the Supreme Court Tuesday to dismiss the federal indictment charging him with conspiring to overturn the 2020 election results and remain in power despite his loss to Joe Biden.
In a 67-page brief filed ahead of oral arguments scheduled for April 25, attorney John Sauer insisted that the 77-year-old Trump enjoyed sweeping immunity from prosecution for official acts during his presidency.
“A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” Sauer wrote.
Prosecutors, led by special counsel Jack Smith, have insisted that Trump’s actions related to the 2020 election — which culminated in the Jan. 6, 2021, Capitol riot by his supporters — do not constitute official acts by a president, but rather were actions taken in his “capacity as a candidate” to overturn the election for his own benefit.
Two lower courts have rejected Trump’s immunity argument, but the Supreme Court has agreed to hear the case in the hope of settling the larger constitutional question — postponing a trial which was due to begin March 4 in Washington.
Trump’s lawyers also told the justices that in the event they don’t accept his immunity arguments, they should send the case back to the district court for additional “fact-finding.”
Such a move would result in even lengthier delays before a trial could be scheduled.
In their brief, Trump’s lawyers underscored that for the first 244 years of the constitutional republic, “no former, or current president faced criminal charges for his official acts.”
Sauer cited Nixon v. Fitzgerald, a Supreme Court case from 1982 in which the high court determined that presidents enjoy absolute immunity from liability for civil damages based on official acts — but did not grant absolute immunity for criminal charges stemming from actions taken while in office.
Trump’s team also insisted that the president was acting in his official capacity to assess whether the “election was tainted by fraud and irregularities.”
US District Judge Tanya Chutkan, who is overseeing the criminal case against Trump, rejected his arguments last December, concluding presidents aren’t entitled to a “lifelong get-out-of-jail-free pass.”
Last month, a three-judge panel on the DC Circuit Court of Appeals upheld her decision.
During oral arguments before the appeals court, Judge Florence Pan, a Biden appointee, asked Trump’s team if “a president who ordered SEAL Team 6 to assassinate a political rival” could be held criminally liable.
“If he were impeached and convicted first,” Sauer replied at the time.
In the brief to the Supreme Court filed Tuesday, Trump’s team implored the high court to “neutralize one of the greatest threats to the president’s separate power, a bedrock of our Republic, in our nation’s history.”
“A former president enjoys absolute immunity from criminal prosecution for his official acts. Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers,” they wrote.
Trump appointed one-third of the justices on the Supreme Court, which faces a docket loaded with politically charged cases this session.
The presumptive Republican nominee is the first current or former president to get criminally indicted and is facing a total of 88 counts spanning four indictments. Trump has denied wrongdoing and pleaded not guilty across the board.
