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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