Trump seeks to have election-interference case dismissed

Lawyers argue former president has immunity, while Trump also seeks delay in documents case

Donald Trump returns to his civil fraud trial in New York. Picture: AFP

Former president Donald Trump’s lawyers urged a federal judge Thursday to dismiss his indictment on charges he conspired to overturn his 2020 election loss, arguing that the law affords him “absolute immunity” from prosecution because the allegations involve actions he took as president.

In a 52-page court filing, Trump’s lawyers said the Justice Department had broken with more than two centuries of precedent by charging a former president in connection with conduct that was “not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as president.”

Trump’s legal team, which weeks ago signalled it would raise immunity claims, cited the Constitution and a Supreme Court precedent involving former president Richard Nixon to argue that Trump couldn’t face prosecution for actions taken in office.

Separately, other Trump lawyers late Wednesday asked a judge to postpone his classified-documents trial until after next year’s presidential election, citing scheduling conflicts with his other court cases and delays in reviewing evidence.

Taken together, the actions marked some of Trump’s most aggressive moves yet to delay and derail his two federal prosecutions, which are among the four criminal cases he faces as he makes another bid for the White House in 2024.

In both federal cases, Trump’s lawyers have filed motions that prosecutors have said are disingenuous and serve only to unnecessarily stall the proceedings.

In the election-interference case, Trump’s lawyers underscored the unprecedented nature of the first federal prosecution of a former president.

“American history teems with situations where the opposing party passionately contended that the President and his closest advisers were guilty of criminal behaviour in carrying out their official duties,” Trump lawyer John Lauro wrote.

“In every such case, the outraged opposing party eventually took power, yet none ever brought criminal charges against the former President based on his exercise of official duties,” he added. “Nor did any state or local prosecutor of the thousands of such officials throughout the history and tradition of United States attempt a similar manoeuvre.”

Trump’s lawyers repeatedly cited a Supreme Court case, Nixon v. Fitzgerald, in which the justices ruled in 1982 that presidents enjoy absolute immunity from damages liability for acts within the “outer perimeter” of their official responsibilities. While the case concerned civil suits, Trump’s legal team argued that it should be read to also grant immunity from criminal prosecution.

“To hold otherwise would be to allow the President’s political opponents to usurp his or her constitutional role, fundamentally impairing our system of government,” Trump’s lawyers argued.

A previous civil case raising a similar question suggests Trump might not be successful with such a claim. Last year, another federal judge in the same Washington courthouse found that Trump could face lawsuits over some of his actions after the 2020 election, and not everything he did while president was covered by presidential immunity. That ruling, which suggested that presidents can be found liable for some speech outside of the context of their official duties, is now on appeal with the U.S. Court of Appeals for the District of Columbia Circuit.

Prosecutors haven’t responded to Thursday’s motion, and a spokesman for special counsel Jack Smith declined to comment.

In the other federal case, charging Trump with retaining classified documents after he left the White House, Trump’s lawyers sought the delay, saying the Washington case, set to open in March 2024, “requires President Trump and his lawyers to be in two places at once.” One of his lawyers in the Mar-a-Lago case, Christopher Kise, is also representing him in a continuing civil fraud trial in New York. A New York appeals court last month rejected a bid by Trump’s attorneys to postpone that trial.

Judge Tanya Chutkan, an Obama appointee, declined late last month to recuse herself from the Washington case, rejecting Trump’s arguments that her past statements about the Jan. 6, 2021 attack on the Capitol created an appearance of bias against the former president.

Chutkan is now weighing prosecutors’ request for a “narrowly tailored” gag order to limit Trump’s public statements about the case. She has set an Oct. 16 hearing for arguments over the proposed restrictions.

Trump’s attorneys, meanwhile, have accused Smith’s prosecutors of withholding evidence they need to prepare his defence. In the Mar-a-Lago case, they said they have had access to only a small, temporary facility in Miami in which to view the sensitive material, slowing the process. They had earlier asked for such a facility to be set up at Mar-a-Lago, where prosecutors said the alleged crimes took place.

“The Special Counsel’s Office has not provided some of the most basic discovery in the case,” wrote Kise and another lawyer, Todd Blanche. “We cannot understate the prejudice to President Trump arising from his lack of access to these critical materials months after they should have been produced.” Prosecutors haven’t yet responded to Wednesday’s filing but have denied slow-walking the production of evidence and promised to provide more by Friday.

“This production will include certain materials that Defendants have described as outstanding, including audio recordings of interviews and information related to the classification reviews conducted in the case, ” they wrote.

The Wall Street Journal