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Donald Trump should be immune from criminal prosecution over alleged attempts to overturn the 2020 election because he was acting in his official capacity as president, his attorneys have argued in a challenge that could ultimately end up in front of the US Supreme Court.
The indictment of Trump brought by special counsel Jack Smith in August, which accused him of orchestrating a criminal scheme to win back office, broke “234 years of precedent”, lawyers for the 77-year-old former president said in a brief filed on Thursday.
The motion sets up what is likely to be a landmark legal fight over whether current and former presidents can be subject to criminal prosecution for acts committed while in office.
In the brief, Trump’s lawyers claimed history provided “compelling evidence that the power to indict a former president for his official acts does not exist”.
They cited heavily from a 1982 case, Nixon vs Fitzgerald, in which the Supreme Court ruled that a president “has absolute immunity from liability for civil damages arising from any official action taken while in office”. That case was originally brought by a US Air Force analyst who claimed he was fired by Richard Nixon’s administration after blowing the whistle about government inefficiencies.
Todd Blanche, a lawyer for Trump, conceded in the brief that US courts have not ruled on whether presidential immunity “includes immunity from criminal prosecution.”
“American history teems with situations where the opposing party passionately contended that the president and his closest advisors were guilty of criminal behaviour in carrying out their official duties,” Blanche wrote.
“In every such case, the outraged opposing party eventually took power, yet none ever brought criminal charges against the former president based on his exercise of official duties,” he added.
Nixon himself famously claimed in a TV interview following his resignation that “when the president does it . . . that means that it is not illegal”, referring to an order for intelligence to be gathered on political opponents, which came to light during the Watergate scandal. Nixon resigned as president in 1974 and was later issued a pre-emptive pardon by his successor, Gerald Ford.
The Trump brief “is consistent with how the former president has framed his power as president, which is absolute”, said Temidayo Aganga-Williams, a former senior investigative counsel for the congressional committee that investigated the January 6 attack on the US Capitol.
Trump, who once bragged that he “could stand in the middle of Fifth Avenue and shoot somebody” without losing support, was essentially arguing that “if you can’t get two-thirds of the Senate to convict me, then too bad”, Aganga-Williams added.
Trump — who is facing federal charges over alleged election interference, including criminal counts of conspiracy to defraud the US, to obstruct an official proceeding and to threaten individual rights — has long claimed that he is subject to a political witch hunt by left-leaning prosecutors.
By challenging on the grounds of presidential immunity, Trump, who is the frontrunner to once again become the Republican candidate for president, could delay the trial scheduled for March 2024 — right in the middle of primary season.
Trump is facing one other federal indictment and separate state criminal cases in New York and Georgia.
However, special counsel Smith’s team have likely been anticipating such a challenge, and Trump’s lawyers had warned the judge hearing the case they planned to file a motion of this kind.
“This is dead on arrival before Judge [Tanya] Chutkan, and it is incredibly unlikely that the DC circuit will do anything but reject the president’s claim,” Aganga-Williams said. “So what he is doing here is trying to get the Supreme Court to intervene.”
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