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Trump Seeks Dismissal Of DC Case Based On “Presidential Immunity”

Trump Seeks Dismissal Of DC Case Based On “Presidential Immunity”

The motion itself highlights several areas on which Trump could lose the motion, but they are issues of law not fact. Which makes them ripe for an appeal if (and likely when) the District Court Judge denies the motion. This is going to end up at SCOTUS, and that’s about as far a prediction as I’m willing to make at this point.

As I’ve argued many times, it’s not at all clear that what has been alleged in the indictment of Donald Trump in the District of Columbia federal court actually constitutes a crime:

Attempting to overturn an election, in and of itself, is not a crime. The way in which it is done could be a crime, but the crime alleged is the end result of overturning the election.

Putting that aside, Donald Trump has just filed a Motion to Dismiss the case on the ground that his actions are covered by presidential immunity:

The President of the United States sits at the heart of our system of government. He is our Nation’s leader, our head of state, and our head of government. As such, the founders tasked the President—and the President alone—with the sacred obligation of “tak[ing] Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3.

To ensure the President may serve unhesitatingly, without fear that his political opponents may one day prosecute him for decisions they dislike, the law provides absolute immunity “for acts within the ‘outer perimeter’ of [the President’s] official responsibility.” Nixon v. Fitzgerald 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion)).

Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the “outer perimeter,” but at the heart of his official responsibilities as President. In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties. Instead, the prosecution falsely claims that President Trump’s motives were impure— that he purportedly “knew” that the widespread reports of fraud and election irregularities were untrue but sought to address them anyway. But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide. Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution…. Therefore, the Court should dismiss the indictment, with prejudice.

The question will be whether Trump’s reelection actions were within the scope of his duties as president, or at least close enough to that scope, to receive immunity. Even the motion implicitly concedes there could be things a president does that would not receive immunity. What comes to my mind is Trump famous quip about shooting someone in the middle of Fifth Avenue – perhaps his supporters would stick with him, but it’s hard to imagine he’d get presidential immunity for it.

Trump’s motion then acknowledges it is unsettled law whether presidential immunity covers criminal prosecution, and then devotes a dozen pages of legal argument that criminal prosecution should be covered:

No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act. The question remains a “‘serious and unsettled question’ of law.” See id. at 743 (citation omitted) (holding “[i]n light of the special solicitude due to claims alleging a threatened breach of essential Presidential prerogatives under the separation of powers,” issues of Presidential immunity were “serious and unsettled”). In addressing this question, the Court should consider the Constitution’s text, structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines, and considerations of public policy.

That seems to be a threshold question a court will have to determine. Assuming a court determines presidential immunity protects against criminal prosecution, the issue would be what is covered. Here’s how Trump’s legal team, including Legal Insurrection reader John Lauro, frame the conduct at issue in the indictment as being within the presidential orbit:

The indictment alleges that President Trump took a series of actions that form the basis of its charges. These acts fall into five basic categories. The indictment alleges that President Trump, while he was still President: (1) made public statements about the administration of the federal election, and posted Tweets about the administration of the federal election; (2) communicated with senior Department of Justice (“DOJ”) officials about investigating election fraud and about choosing the leadership of DOJ; (3) communicated with state officials about the administration of the federal election and their exercise of official duties with respect to it; (4) communicated with the Vice President, in his legislative capacity as President of the Senate, and with other Members of Congress about the exercise of their official duties regarding the election certification; and (5) authorized or directed others to organize contingent slates of electors in furtherance of his attempts to convince the Vice President to exercise his official authority in a manner advocated for by President Trump.1

These actions, Trump asserts in the motion, should be covered:

The indictment is based entirely on alleged actions within the heartland of President Trump’s official duties, or at the very least, within the “outer perimeter” of his official duties. As President Trump is absolutely immune from criminal prosecution for such acts, the Court should dismiss the indictment….

In other words, the “outer perimeter” of Presidential duties—and thus the scope of Presidential immunity—encircles a vast swath of territory, because the scope of the President’s duty and authority in our constitutional system is uniquely and extraordinarily broad….

Among these Article II duties, perhaps the most fundamental are the framers’ dual mandates that he hold “the executive Power,” and with it, the duty to “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, §§ 1, 3. To this end, the President must assume “supervisory and policy responsibilities of utmost discretion and sensitivity,” which “include[s] the enforcement of federal law.” ….

In deciding what conduct falls within the scope of official duties, courts apply an objective test based on the nature of the act—not the manner in which it was conducted, or any allegedly malicious purpose…. Nor does a mere allegation that an act was unlawful or otherwise inconsistent with a particular statutory scheme place it beyond the “outer perimeter” of the President’s official Case responsibility.

Importantly, this recognition of absolute immunity, regardless of internal motivation, does “not place the President ‘above the law,’” but instead simply clarifies that the remedy for alleged official misconduct lies, as the Constitution requires, with Congress through impeachment, and through other informal means…. Thus, even if the President’s speech or conduct appears to have a dual character—i.e., both official and personal (including campaign-related) at the same time—that conduct still lies within the “outer perimeter” of his official responsibilities and is immune from prosecution….

Applying this objective test, every action of the Defendant alleged in the indictment falls within the “outer perimeter” of President Trump’s official duties. As an initial matter, every action of the Defendant charged in the indictment occurred while he was still in office as President of the United States, and, according to the prosecution, all concerned a federal government function. Doc. 1. Given the all-consuming nature of the Presidency, these facts alone strongly support the notion that the indictment is based solely on President Trump’s official acts….

But, as explained above, separate from the fact that the allegations regarding intent are untrue, an allegedly improper purpose for an official act does not rob the act of its official character—indeed, there is hardly an immunity case without such an allegation.

The motion itself highlights several areas on which Trump could lose the motion, but they are issues of law not fact. Which makes them ripe for an appeal if (and likely when) the District Court Judge denies the motion. This is going to end up at SCOTUS, and that’s about as far a prediction as I’m willing to make at this point.



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Donald Trump did nothing illegal.
It was not only his right but his duty to contest the election results. There are millions of us who agree with him: the 2020 election was stolen.
It doesn’t matter how many times they deny it, it was stolen.
And we have a really boken system when the top court of the land has the nerve to tell us that we don’t have standing to contest the election. WE ALL HAVE STANDING because elections have consequences that affect all of us.

    Milhouse in reply to Exiliado. | October 6, 2023 at 1:00 am

    “WE ALL HAVE STANDING” is impossible, by definition. The definition of standing is that the would-be plaintiff claims to be more harmed by the complained-of act than is the general public. The legal terminology is “concrete and particularized”. Someone who only alleges harm as a member of the general public has no standing to bring action.

      Lucifer Morningstar in reply to Milhouse. | October 6, 2023 at 8:16 am

      Standing The legal right to challenge in a judicial forum the conduct of another. In the federal system, litigants must satisfy constitutional standing requirements in order to create a legitimate case or controversy within the meaning of Article III of the Constitution. In construing this language, courts have held that the gist of the question of standing is whether the party seeking relief has alleged a personal stake in the outcome of the controversy so as to insure that real, rather than remote or possible, adverseness exists to sharpen the presentation of issues.

      Gifis, Steven H. (1998) Standing. In Dictionary of Legal Terms (3rd ed., p 467).


      Standing has nothing to do with being “more harmed than the general public”. If you can show in your action a personal stake (or harm) that will be caused by the action then you have standing. If you cannot show that personal stake (or harm) then you do not have standing. Harm is harm and that’s the end of it.

        Completely unnecessarily (and clownish) to quote a legal reference on “standing.” He’s not literally making a formal legal argument but just referring to the concept to make a broader point on the gravity of the wrong. Your comment is just pedant meets stupid.

          Lucifer Morningstar in reply to Concise. | October 6, 2023 at 6:17 pm

          Milhouse totally screwed the pooch on his definition of the legal concept of “standing” because it has nothing whatsoever to do with comparing the harm to an individual with the harm to the public in general. If an action causes you harm in any manner or amount you have standing to sue to remedy that harm. Period. Easy Peezy to understand.

          • If the city I live in comes to my house and digs up my front yard and then refuses to restore my yard to the original condition it was in before they dug it up they have harmed me and I have standing to sue the city to have my yard restored to its original state or compensate me for doing so.

          • If I were to try to file a suit claiming another state prevents its own citizens from voting my lawsuit would be dismissed because while the facts might be true I do not have standing because I live in a different state and no harm comes to me because another state prevents its citizens from voting.

          See? it’s easy as pie.

          Concise in reply to Concise. | October 6, 2023 at 7:11 pm

          Actually my error, I had thought you were challenging Exiliado above not Milhouse, although I will note that your criticism of Milhouse is misplaced., which is what I would expect from a pedantic clown. Milhouse was simply restating the basic principal that someone cannot claim standing merely because they have suffered an injury that is shared by all members of the general public. Mihouse just erred in my view because quoting technical legal standards here was just not appropriate. See? it’s easy as pie.

        Lucifer, to have standing the harm must be concrete and particularized”. The definition of “particularized” is that you were harmed more than the general public was. If you claim that you were harmed simply as a member of the whole public, who were all harmed equally, then your claim is not particularized and you have no standing. That’s basic and fundamental to the whole concept of standing.

        So yes, if the city dug up your yard, you have standing, because it wasn’t the general public’s yard, it was yours.

      Concise in reply to Milhouse. | October 6, 2023 at 10:08 am

      Maybe if he were filing a motion in a court of law but he’s not. His comment just points out how absurd the technical legal limitations of standing are in light of the reality of the harm to the electorate at large in this context.

        Lucifer Morningstar in reply to Concise. | October 6, 2023 at 6:19 pm

        Nope. Milhouse gets the definition of standing completely wrong. And I point that out. See comment above for details.

          Nope. You fail to understand my comment. I was thinking about how
          I could dumb it down for you but sorry, I can’t. Maybe ask your parents to explain it to you?

          Of course notwithstanding my response, you may actually believe the everyone has legal standing argument, which is so incomprehensible stupid that I all I can say is that you are welcome to your views because I have nothing further to say to you.

      DaveGinOly in reply to Milhouse. | October 7, 2023 at 7:18 pm

      The general public (in this county, at least) is always harmed by unconstitutional government acts and/or criminality that affects a presidential election, and should always have standing in situations involving constitutional limits on government and/or constitutionally-guaranteed rights and constitutionally-mandated processes, because we all have an interest in defending the Constitution and the Republic. Some may not care to exercise or admit their interest, but their lack of a sense of civic duty should not impugn the interests of those who have a sense of civic responsibility.

About frigging time. I’ve ranted about this since this travesty of a mockery of a sham of a mockery of a travesty of two mockeries of a sham was filed.

On another note, I think there is no mystery as to how this biased “judge” will rule on this motion. I would have liked a separate proceeding to have been initiated to force her recusal. This disgraceful abuse of process is vulnerable to challenge on multiple levels.

E Howard Hunt | October 5, 2023 at 10:52 pm

You don’t win back the country in courtrooms, but in the streets.

    Both sound like bad choices, unless by “streets.” you mean campaigning and voting for the right candidate (which of course would be DJT)

      “in the streets” … I think he mean running the MFers over with a car.

        Concise in reply to MrE. | October 6, 2023 at 8:22 am

        Uh, No Not a good idea. In fact, a very bad idea. But what he may be suggesting, and I overlooked this option, is legal protest, which might be an effective tool, if we still have the Constitution and the First Amendment..

          Mauiobserver in reply to Concise. | October 6, 2023 at 2:31 pm

          Non violent resistance. Follow the examples in history of the Poles and other Eastern European countries in overthrowing their communist overlords.

        MarkSmith in reply to MrE. | October 6, 2023 at 11:51 am

        U are now a domestic terrorist which prevents u from voting. Btw, if u even think about voting for Trump,u are a domestic terrorist and shot be shot. Hat tip Newsweek

This motion should be brought and heard, but my instinct is that Trump acted in these instances, not as Trump-the-President but as Trump-the-Candidate, and so the motion should fail and he should not have immunity.

The prosecution should still be dismissed, not because of immunity but because none of the acts he’s accused of is a crime.

    You cannot legally separate Trump-the-candidate from Trump-the-President and hope to have any chance of retaining Federal pre-emption. This is just the proverbial camel’s nose in the tent. If it stands, it will be used as precedent for every nut in every state to sue every Fed they can find who takes an action or makes a ruling. The actions he took to investigate suspected criminal election fraud were made as the Executive during his term of office. Any criminal prosecution for the actions of the Executive during their term is the responsibility of the House and Senate, much like the time they impeached the President for attempting to investigate the Biden bribery and kickback schemes in Ukraine. (And yes, the first impeachment was completely without merit, used only as an attempt to cover up the bribe chain from foreign money going into DC, which scared the heck out of a bunch of politicians who have been skimming that money for decades)

      Milhouse in reply to georgfelis. | October 6, 2023 at 2:03 am

      You’re not obviously wrong, which is why I think this motion should be brought and heard, and given serious consideration, but in the end I don’t think it’s correct.

      And yes, both impeachments were travesties that would never have been done to any other president. (Though what Andrew Johnson was impeached for turned out not to be illegal, because the supreme court decided the law he broke was unconstitutional.)

      henrybowman in reply to georgfelis. | October 6, 2023 at 5:34 am

      “You cannot legally separate Trump-the-candidate from Trump-the-President and hope to have any chance of retaining Federal pre-emption.”

      What’s even tougher is separating Katie Hobbs the candidate from Katie Hobbs the bureaucrat in charge of running the crooked election process.

        Milhouse in reply to henrybowman. | October 8, 2023 at 9:56 am

        Those are very easy to separate. Hobbs had no personal involvement in running the election. If there was anything crooked about it, it had nothing to do with her. She had ministerial responsibility for it, which was carried out by her department just as it is in all elections. And there’s really no other way that it could have been, unless you are a Goo-goo Progressive who thinks the Deep State should be trusted to run elections on its own, with no elected official being responsible.

      DaveGinOly in reply to georgfelis. | October 7, 2023 at 7:22 pm

      Even if you could separate candidate Trump from President Trump, in this situation the interests of both overlap. This overlap should not allow a court to dismiss a defense of immunity, because many, many instances of such overlap can be imagined, and a president must be allowed to act in the best interests of the country, even when such action corresponds to his own best interests.

    Azathoth in reply to Milhouse. | October 6, 2023 at 12:05 pm

    The incumbent is not running as a ‘candidate’.

    They already have, and must continue doing the job in question during the election.

    This means that during the election, part of the job is securing, maintaining, and defending the integrity of the election itself.

    And all of that is not ‘novel legal theory’, it’s settled law.

      Milhouse in reply to Azathoth. | October 8, 2023 at 9:59 am

      Are you seriously suggesting that Trump in 2020 was not a candidate?! That’s too ridiculous for words. He was a candidate, and when he acted as a candidate he should have no immunity. The question is in what capacity was he acting here, and I think it’s obvious that he was acting as a candidate. But nothing he did was illegal, so it shouldn’t matter.

How is shooting somebody in the middle of 5th Avenue within the scope of duties of a president?


    MarkSmith in reply to George S. | October 6, 2023 at 11:53 am

    Well if he is cheating in the election…….

    You’re posing a nonsense question. He didn’t put it in that context.

    Concise in reply to George S. | October 6, 2023 at 12:51 pm

    I’m frankly surprised that Prof. Jacobson would have included such a comment. It’s just a silly gratuitous belittling of President Trump supporters. Such action is clearly not within the ambit of presidential responsibilities and the reference is just ridiculous.

I m hoping that we see a return of law, because if that does not happen, fixing this will be very painful.

It should go without saying that a president can’t be prosecuted for exercising his authority/responsibility under the Constitution, fulfilling his obligations under the law, and as imposed by his office. Urging others in office to similarly exercise their lawful authority to overturn an election should be likewise protected.

The idea that DJT “knew” the election was legit is a red herring. A belief that there was fraud or other criminality behind an election result is not a precondition to invoking a forensic examination or investigation of the electoral process. The laws that would guide such an examination/investigation exist to both discover criminality and to demonstrate an election’s legitimacy. What the people requesting or invoking such investigations believe about the election results is not relevant. Either starting point (and even when the protagonist knows he is wrong) can yield a result that serves the public’s interests, either by discovering criminality, or by demonstrating an election was, in fact, “fair and secure.”

Even a mistaken belief that a president (or other official) has authority for any act (e.g., a belief that Pence could reject electors, or that “alternative slates” of electors is legit – presuming these things are illegal for the sake of argument) has never resulted in the criminal prosecution of a government official. If a mistaken belief concerning an official’s authority could result in the prosecution of that individual after leaving office, every former legislator who helped to pass legislation later found unconstitutional due to violation of individual rights could be tried for 14th Amendment/civil rights violations and false swearing/perjury (taking an oath to support the Constitution and then violating it). We know this doesn’t (and won’t) happen. But some in authority seem to think DJT presents a special case.

    Milhouse in reply to DaveGinOly. | October 8, 2023 at 10:03 am

    Even a mistaken belief that a president (or other official) has authority for any act (e.g., a belief that Pence could reject electors, or that “alternative slates” of electors is legit – presuming these things are illegal for the sake of argument) has never resulted in the criminal prosecution of a government official.

    This shouldn’t result in the criminal prosecution of anyone. So long as it’s not so ridiculous that no reasonable person could have sincerely believed it, the person must be presumed to have done so, and therefore can’t have committed a crime.

Conservatives who support this: Be god damn careful what you wish for.