Donald Trump on Tuesday asked the Supreme Court to grant him “absolute immunity” as a means to kill the federal criminal investigation into his attempts to overturn the 2020 election, recasting the unprecedented chapter in American history as nothing more than him doing his job as commander-in-chief.
In a 63-page brief, the former president’s lawyers argued that everything Trump did to fight the transfer of power to Joe Biden was somehow within the “outer perimeter” of his official duties—repeating a claim that has failed to convince a trial judge or the District of Columbia appellate court.
The filing comes just one month before the conservative-leaning court, where three of the nine justices were appointed by Trump himself, holds a historic hearing in April to hear oral arguments from both sides on the immunity question.
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The investigation led by Department of Justice Special Counsel Jack Smith hangs in the balance. The high court will decide whether the Republican Party’s presumptive nominee for president in 2024 will face a criminal trial. And the timing of that decision could determine whether the trial happens this summer and wraps up in time for the November election—or if the case will be resolved when voters cast their ballots for president.
In their court filing, Trump defense lawyers Todd Blanche, John F. Lauro, and D. John Sauer leaned heavily into the idea that the prosecution presents “one of the greatest threats to the president’s separate power.” And they urged the justices to protect the very stature of the top executive’s office—no matter who is in the White House.
“From 1789 to 2023, no former, or current, president faced criminal charges for his official acts—for good reason. The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office,” they wrote.
“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. The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions, taking away the strength, authority, and decisiveness of the presidency,” they continued.
Smith and his federal prosecution team criminally charged Trump for abusing the power of that office by engaging in a months-long campaign to discredit the nation’s election system, resorting to thug-like tactics to try to reverse his loss at the polls.
But when defense lawyers addressed the charges in detail, their argument reframed Trump’s blistering attack on the nation’s democracy as within the bounds of normal actions a president might take.
Trump’s public rallying cries to his followers in late 2020 were cast as “a series of tweets and other public statements on matters of paramount federal concern.” His attempt to install a loyalist as Attorney General and turn the Department of Justice into a weapon against the election system was merely him taking part in “Oval Office meetings.” His intimidation tactics against Republican state leaders were reduced to him having “communicated with state officials about the administration of the federal election.”
Trump's plan to pressure Vice President Mike Pence to hijack Congress’ election certification on Jan. 6, 2021, meanwhile, was only an attempt to “urge them to exercise their official duties.” And his plot to employ fake electors to rig the election was described as simply a way to “help ensure” that Pence “would be authorized to exercise his official duties.”
This criminal prosecution, they said, would only be permissible if Trump had first been impeached and convicted while in office. The argument stems from a selective reading of The Federalist Papers written by three of the nation’s founding thinkers, in one instance stretching the meaning of an idea put forth by Alexander Hamilton.
“Hamilton described criminal prosecution of a president as a ‘consequence’ of impeachment conviction,” they wrote, citing one essay in which the young statesman wrote: “After having been sentenced to a perpetual ostracism from the esteem and confidence, and honors and emoluments of his country, he will still be liable to prosecution and punishment in the ordinary course of law.”
Their argument boils down to: The Senate didn’t convict Trump, so Smith can’t prosecute him.
Judges at the D.C. appellate court rejected that reading of Hamilton’s essay. After all, the whole point of it was to explain why the Senate should handle impeachments while courts should deal with any criminal case—an idea that implies that one need not rely on the other.
Notably, in opposing Trump’s impeachment after Jan. 6, Senate Minority Leader Mitch McConnell (R-KY) noted that the Senate’s acquittal did not change Trump’s liability for what had occurred.
“We have a criminal justice system in this country. We have civil litigation,” McConnell said at the time. “And former presidents are not immune from being accountable by either one.”
By relying heavily on Hamilton’s writings, Trump’s lawyers may have to contend with the fact that Hamilton just three sentences later cautioned about “the influence of any new lights which might be brought to vary the complexion of another decision”—a line that in today’s parlance would refer to the kind of new evidence federal prosecutors could unveil at Trump’s upcoming criminal trial.
In this case, many of the details of Trump’s election interference efforts weren't publicly available when 43 Senate Republicans voted to acquit him in the impeachment trial just weeks after Jan. 6.
Still, Trump’s lawyers claim that letting Smith put the former president on trial is just “political targeting” than presents a “mortal danger” to the very fabric of American government.
“American history contains no shortage of examples of presidents committing allegedly ‘criminal’ official acts—at least in the eyes of their political opponents,” they wrote.
The trio went on to cite the way John Quincy Adams, the nation’s sixth president, was accused of striking a “corrupt bargain” by appointing a congressman to State Secretary as a perceived favor; the way Andrew Jackson ignored court orders and proceeded to forcibly resettle some 60,000 Native Americans through the deadly Trail of Tears; and how Franklin Delano Roosevelt ordered more than 125,000 Japanese-Americans into imprisonment camps during the Second World War.
But in making their argument, Trump’s defense team put the former president’s attempted coup right alongside some of the American presidency’s most recent embarrassing and unethical moments: citing the way Bill Clinton “repeatedly launched military strikes in the Middle East” to distract the American public from the unfolding Monica Lewinsky affair and George W. Bush’s lies to Congress about Saddam Hussein’s “weapons of mass destruction” to justify a military invasion of Iraq.
