WASHINGTON — Former President Donald Trump on Tuesday told the Supreme Court he should be granted absolute immunity for his effort to overturn the 2020 election results that culminated in the Jan. 6 attack on the Capitol, saying a ruling against him would “incapacitate every future president.”
Trump’s legal team filed a brief outlining its legal arguments ahead of oral arguments on April 25, saying Trump should enjoy absolute immunity for any official acts he undertook as president.
“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,” Trump’s lawyers wrote.
If the court rejects his claim, it would “incapacitate every future president,” leaving presidents open to blackmail and extortion, they added.
Prosecutors led by special counsel Jack Smith are hoping for a swift ruling against Trump so that a criminal trial can take place before November’s presidential election. Smith’s own brief is due April 8.
The court, which has a 6-3 conservative majority, including three Trump appointees, will be considering the novel legal question of whether a former president enjoys presidential immunity for “conduct alleged to involve official acts during his tenure in office.”
Trump has so far lost that argument in two different courts.
In the new brief, his lawyers argue that the case zeroes in on the president’s unique powers under the Constitution, which the Supreme Court has previously affirmed in various contexts, although not in a criminal case.
They cite among other things a 1982 Supreme Court ruling in a case called Nixon v. Fitzgerald that said presidents cannot be sued in civil cases for conduct within the “outer perimeter” of their authority.
The justices should “neutralize one of the greatest threats to the president’s separate power, a bedrock of our republic, in our nation’s history,” the lawyers added.
Trump’s team also left open the possibility that, if the court rejects his bid to have the charges dismissed outright, it could remand the case to lower courts for further fact-finding on whether the charges concern official acts. That would delay any trial even further.
Smith’s team has previously argued that there is no broad immunity that prevents former presidents from being prosecuted for criminal acts committed in office. An attempt to “use fraudulent means to thwart the transfer of power” should not be considered an official act, Smith said in earlier court papers.
Trump’s immunity claim was prompted by a four-count indictment in Washington, including charges of conspiracy to defraud the U.S. and conspiracy to obstruct an official proceeding. He has pleaded not guilty.
Washington-based U.S. District Judge Tanya Chutkan rejected Trump’s plea for immunity in December.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld that decision in February, prompting Trump to turn to the Supreme Court.
