A late-night filing by lawyers for Donald Trump made a final written request to a federal appeals court to grant him “immunity” from charges stemming from his efforts to sway the 2020 presidential election.
The 41-page filing is likely the last step before a three-judge panel in Washington hears arguments from Mr Trump's lawyers and federal prosecutors on January 9 before making a final decision on whether the former president has “immunity” from prosecution for crimes committed while in office.
Trump's trial on conspiracy charges related to efforts to reverse his 2020 loss is scheduled for March 4, but the case has effectively been put on hold while the former president appeals. The US Supreme Court declined to expedite an appeal, letting the “immunity” issue play out as planned at the appellate level.
Whatever the outcome of this ruling, the issue of “immunity” is likely to land immediately before the US Supreme Court in the coming weeks amid Mr Trump's campaign for the Republican presidential nomination.
The latest argument from Trump's lawyers comes from a lengthy report he published on Truth Social on Tuesday, which revives unverified and unverified allegations of voter fraud, relying on reports from fake, far-right and conspiracy-theory websites that boosted the narrative. of Mr. Trump that the 2020 election was stolen and rigged against him.
Lawyers revived familiar arguments, insisting that the case should be dropped entirely and that Trump's acquittal in his second impeachment for inciting the Jan. 6 attacks on the US Capitol means he cannot stand trial for similar crimes.
“Impeachment, not criminal prosecution, provides the primary check against alleged presidential misconduct,” the lawyers wrote in Wednesday's editorial.
His lawyers have long argued that Mr. Trump's actions constituted “official acts” under his presidency and that prosecuting such actions now would jeopardize an “unbroken 234-year tradition.”
“The potential for politically motivated prosecutions to develop, and future cycles of counter-indictments, are far more threatening and crippling to the presidency than the threat of civil liability,” they wrote.
“Therefore, the scope of criminal immunity must be at least as broad as that of civil immunity, that is, the ‘outer perimeter' of the president's official responsibilities,” according to Mr. Trump's lawyers. “All five counts of conduct charged in the indictment fall within this broad scope.”
On December 1, the federal judge overseeing the case ruled that Trump's one term did not give him “the divine right of kings” to avoid criminal liability.
“The United States has only one CEO at a time, and that position does not provide a lifetime ‘get out of jail' card,” U.S. District Judge Tanya Chutkan wrote. “Exposing a former President to federal criminal liability is necessary to fulfill our constitutional promise of equal justice under the law.”
A final filing by lawyers with the office of special counsel Jack Smith urged the appeals court to reject Mr. Trump's “immunity” defense, arguing that there is no such claim in the Constitution or case law and that Mr. Trump's desperate attempts to cling to power they are not official presidential acts.
“For the first time in our nation's history, a grand jury has indicted a former President for committing crimes while in office to overturn an election he lost. In response, defendant claims that to protect the institution of the presidency, he must be blanketed with absolute immunity from criminal prosecution unless the House impeaches and the Senate impeaches him for the same conduct. He is wrong,” prosecutors wrote on Dec. 30.
“Separation of powers principles, constitutional text, history and precedent make it clear that a former president can be prosecuted for criminal acts committed while in office — including, more crucially here, illegal acts to remain in office than the defeat in elections”, they added.
Trump's defense “suggests that a president can use any means to remain in office and avoid federal criminal responsibility for his conduct unless he is first impeached and convicted,” according to Mr. Smith's team's filing.
“And his invocation of double jeopardy principles means that a Senate acquittal of a former president because he is no longer in office insulates him forever from criminal liability,” they added. “These claims draw no support from our constitutional heritage and, if accepted, would undermine fundamental principles of equality before the law. The court must confirm.”
The appeals court dispute over his “immunity” claim is among a host of legal challenges facing the former president as he campaigns for a third term in the White House.
Although the Supreme Court declined to hear Mr Smith's request for its ruling on the president's “immunity” claim, the question is expected to return to the nation's highest court. If the appeals court rules against Trump, his team is likely to appeal. If Mr. Smith's argument is rejected and Mr. Trump's “immunity” defense survives, prosecutors will likely ask judges to weigh in.
The Supreme Court is also expected to directly consider whether Mr. Trump is eligible to hold public office under the text of the 14th Amendment, which bars any person who has taken an oath to uphold the Constitution and is “engaged in rebellion or sedition” from the holding public office.
The Colorado Republican Party has appealed a Colorado Supreme Court justices' decision to the highest court, which faces a request to keep its name on the state's 2024 ballot.
The former president also appealed a second statewide ruling finding him ineligible to serve on Maine's highest court. The state's top elections official ruled last week that he is disqualified from the ballot because of his actions during the Jan. 6 attack on the Capitol.