Republican presidential candidate former President Donald Trump greets people after speaking during a commit to caucus rally, Saturday, Jan. 6, 2024, in Clinton, Iowa. (AP Photo/Charlie Neibergall)
Former President Donald Trump on Monday told a Georgia court his efforts to alter the results of the 2020 presidential election there were “acts that lie at the heart” of a U.S. president’s “official responsibilities” in a last-minute bid to evade criminal prosecution.
Attorneys for the 45th president asked the Superior Court of Fulton County to toss out the racketeering (RICO) case against him in a hodgepodge burst of various 11th-hour motions to dismiss. Monday marks the deadline for pretrial motions to be filed for many of the defendants in the election subversion conspiracy case.
Spread across three separate court filings, Trump claims his criminal prosecution is barred on grounds of presidential immunity, supremacy clause immunity, due process, and double jeopardy.
In a fourth filing on Monday, Trump’s attorneys claim Fulton County District Attorney Fani Willis has been less than forthcoming with certain evidence her office may have to provide to the defense.
Myriad immunities
“From 1789 to 2023, no President ever faced criminal prosecution for acts committed while in office,” the 67-page immunity motion begins. “That unbroken historic tradition of presidential immunity is rooted in the separation of powers and the text of the Constitution.”
Arguing for “absolute immunity” from criminal prosecution, the lengthiest motion filed on Monday outlines various theories of immunity in U.S. law and cites to various court cases that have upheld such immunity for presidents, judges, and other government officials.
Presidents are particularly insulated from being charged with crimes, the motion argues, due to the office necessarily requiring “especially sensitive duties” as well as “bold and unhesitating action,” and because criminal charges could “cripple” executive administration.
If presidents could be criminally charged for their behavior in office, then the presidency itself could be “harassed by vexatious actions” including those of “a local prosecutor answerable to a small subset of the United States’ electorate,” Trump’s immunity motion argues.
Presidential immunity is so far-reaching it encompasses behavior that occurs at the “outer perimeter” of a president’s “official responsibility,” the motion argues — citing a Supreme Court case about a president’s civil liability and extrapolating the logic into the criminal sphere.
“As the highest of all posts with the broadest of all duties, the Presidency warrants the broadest possible immunity, and acts fall within its ‘outer perimeter’ unless there is no colorable claim whatsoever that they are presidential in character,” the motion reads.
But, the motion argues, Trump’s various efforts to undo the results of the 2020 election were not even such a close call at all.
“The acts alleged in the indictment lie squarely within the ‘outer perimeter’ of the President’s official duties,” the motion reads. “In fact, they lie at the very heart of presidential responsibility.”
On Jan. 2, 2021, Trump called Georgia’s Secretary of State Brad Raffensperger, a Republican, and demanded he “find 11,780 votes” — enough to overturn President Joe Biden’s win in the Peach State — or potentially face criminal consequences. Raffensperger refused to do so. After the call came to light, Trump released a statement referring to the conversation as “an absolutely PERFECT phone call.” That phone call is the focus of the 41-count criminal indictment filed against the former president and 18 co-defendants last August.
The indictment also charges numerous other actions by Trump and his supporters in the aftermath of the 2020 loss — including the fake or “contingent” electors scheme, directions to declare the election “corrupt,” and instructions to halt the counting of electoral votes.
In a somewhat exhaustive defense of those efforts, the immunities motion catalogs and frames Trump’s actions as follows:
Making statements to the public on matters of national concern — especially matters involving core federal interests, such as the administration of a federal election — lies in the heartland of the President’s historic role and responsibility. Communicating with the U.S. Department of Justice about investigations pursuant to federal election law is a quintessential exercise of the President’s authority … Communicating with state officials about the administration of a federal election and urging them to exercise their official responsibilities with respect to that election are also core exercises of presidential responsibility. So, too, urging the Vice President and Members of Congress to exercise their official responsibilities consistent with the President’s view of the public good is authorized by the Constitution and lies at the heart of the President’s constitutional and historic role. Organizing slates of electors in furtherance of that effort to have Congress exercise its responsibilities falls within the President’s official duties as well.
Moreover, the motion argues that “presidential conduct that appears both official and personal at once is commonplace and immune from prosecution,” and cites to a recent Biden administration filing to support this argument.
“The Supreme Court has emphasized, for example, that ‘there is not always a clear line’ between the President’s “’personal and official affairs,”” the Department of Justice recently argued in an amicus brief filed in one of the Jan. 6 civil cases filed against Trump. “That is especially so with respect to the President’s speech to the public.”
That Biden administration filing, however, sought to affirm a recent denial of absolute immunity in the case, while also upholding some presidential prerogatives, arguing the presidency’s powers “are not amenable to neat dichotomies.”
Signed by Georgia attorneys Steven H. Sadow and Jennifer L. Little, the supremacy clause argument is relatively terse.
“The Supreme Court has held that states cannot use their criminal law to interfere with actions that are inseparably connected to the functioning of the national government,” the motion reads. “There can be no doubt that the election of the President of the United States is so connected to the function of the national government.”
To that end, the motion argues, Georgia “has no authority to involve itself — through criminalization — in the exercise of presidential authority under Article II of the U.S. Constitution.”
The other motions
In the 34-page motion to dismiss on due process grounds, the prime argument is that “Trump lacked fair notice that his advocacy in the instance of the 2020 Presidential Election could be criminalized.”
The filing goes on to fault Willis for using a “novel construction” of long-existing state law that “directly targets pure political speech.”
“President Trump was not on fair notice that his conduct alleged in the indictment could possibly cross the proverbial line, particularly since it has taken place throughout history,” the due process motion concludes. “As such, the indictment must be dismissed.”
The due process filing also goes to bat for the “contingent” electors, arguing that “a person of common intelligence would not believe the conduct undertaken by the Electors would fall within the ambit” of the Georgia statute under which they are charged.
In the 15-page motion to dismiss on double jeopardy grounds, Trump’s defense cites his impeachment by the U.S. House and subsequent acquittal by the U.S. Senate as having foreclosed any criminal interrogation of the underlying activity in the case.
The double jeopardy filing argues the Senate should be swapped in for the term “district court” in the U.S. Constitution’s double jeopardy clause.
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