Trump asks judge to throw out Jan. 6 charges with presidential immunity defense

Former President Trump on Wednesday asked a judge to dismiss the whole of the government’s election interference case against him, arguing all his actions leading up to the Jan. 6 attack on the Capitol are protected by presidential immunity. 

“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,” Trump’s attorneys wrote in the motion. 

“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.”

The 52-page motion argues Trump’s status at the time as president protects even duties on the “outer perimeter” of the role as an executive.

That includes his communications with lawmakers, state leaders and officials at the Department of Justice as he pressured them to launch an investigation into his baseless claims of election fraud. 

Those communications, his attorneys wrote over and over again, “lie at the heart of his constitutional duties.”

The motion is a vigorous defense of Trump’s actions leading up to the riot, actions the Justice Department has argued stripped citizens of the right to have their vote counted and which were built on a mountain of fraudulent claims. 

It’s an argument likely to be completely rejected by the Justice Department, who through special counsel Jack Smith’s team argued that Trump skirted lawful means to voice his dissatisfaction with his loss. 

Trump is facing charges under three statutes, with authorities saying he engaged in a conspiracy to defraud the United States, obstruct the certification of the votes being carried out by Congress, as well as a conspiracy “against the right to vote and to have one’s vote counted.”

In seeking to legitimize his actions, Trump’s motion parses a series of cases that have upheld executive power, including immunity from civil suits while in office. Immunity is needed, his attorneys argue, as the president’s role is one that requires “bold and unhesitating action” – a nod to a prior Supreme Court case.

Still, the unprecedented nature of a criminal trial makes it difficult to point to an analogous example, something also noted by Trump’s legal team.

“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,” Trump’s team writes.

“Here, 234 years of unbroken historical practice—from 1789 until 2023—provide compelling evidence that the power to indict a former President for his official acts does not exist.”

To bolster his case, Trump points to his second impeachment, noting the Senate failed to boot him from office after his efforts to resist the peaceful transfer of power were swiftly brought before the upper chamber.

“The Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate. Here, President Trump was acquitted by the Senate for the same course of conduct,” Trump’s team argues.

The motion fails to note that Senate Minority Leader Mitch McConnell (R-Ky.) rejected that argument.

“President Trump is still liable for everything he did while he was in office as an ordinary citizen,” McConnell said on the Senate floor shortly after voting to acquit Trump. “He didn’t get away with anything. Yet.”

Trump’s motion comes before Judge Tanya Chutkan, who recently rejected another request by the former president that she recuse herself from overseeing the trial.

And she is set to preside over a hearing on Oct. 16 after the Justice Department asked Chutkan to enter a “narrow” gag order in the case that would bar Trump from making disparaging or intimidating remarks about witnesses, court staff, as well as prosecutors themselves, highlighting the threats of violence they spur.

Trump’s arguments about presidential immunity may not get far with Chutkan, who rejected his earlier arguments that executive privilege was a firewall for blocking the House committee investigating the Jan. 6 attack from accessing his records.

“Presidents are not kings, and Plaintiff is not President,” Chutkan wrote in the 2021 decision, arguing he could not assert the privilege after leaving office.

This story was updated at 3:35 p.m.