Trump makes final pitch to appeals court in bid to dismiss Jan. 6 case

Donald Trump disputed special counsel Jack Smith‘s claims that presidents can be subject to criminal prosecution in a court filing Tuesday night, marking the former president’s final written arguments that his election subversion case be dismissed before an appeals court hearing on them next week.

Defense attorneys argued that Smith’s interpretation of presidential immunity was too narrow and that Trump’s Senate impeachment acquittal in 2021 should protect him from being prosecuted for the actions the impeachment proceedings addressed.

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Their latest arguments came after Trump filed an appeal last month with the U.S. Court of Appeals in Washington, D.C., in a bid to have his case dismissed on presidential immunity and double jeopardy grounds. The latter claim refers to the impeachment acquittal.

The next step in the appeals process will be for a three-judge panel, comprising two appointees of President Joe Biden and one appointee of former President George H.W. Bush, to listen to arguments from attorneys for Trump and Smith in a hearing Tuesday morning.

The panel is then expected to rule quickly on the matter, but the exact timing is unclear.

The judges will hear fundamentally different definitions of presidential immunity in arguments next week based on the written arguments both parties have filed in advance of the hearing.

Prosecutors for Smith have accused Trump of making “sweeping immunity claims” that “[threaten] to license Presidents to commit crimes to remain in office.”

“The Founders did not intend and would never have countenanced such a result,” they wrote.

Trump’s defense team fired back on Tuesday that the Constitution specifies that executive power “is exclusively vested in the President,” so courts should play no role in setting limits on it. That would breach the separation of powers, they said.

“The Judicial Branch cannot issue equitable relief directly against the President’s official acts, including his power under the Take Care Clause,” the defense attorneys wrote. “So also, it cannot sit in criminal judgment over them. The Constitution’s text, history, and policy support this conclusion.”

Smith charged Trump last year with four felonies over allegations he illegally conspired to overturn the 2020 election and obstructed an official proceeding.

Trump pleaded not guilty to the charges and now claims he performed the actions referenced in Smith’s indictment within the “outer perimeter” of his official duties as president, which he says precludes him from criminal prosecution for those actions.

Trump also argues that because the Senate acquitted him during impeachment proceedings in 2021 for actions that are the same or almost the same as those referenced in Smith’s indictment, prosecuting him would amount to double jeopardy.

Trump’s and Smith’s pre-hearing briefs thoroughly delved into the scope of a president’s immunity from criminal prosecution, indicating this will be a key topic of debate at next week’s hearing.

“The implications of the defendant’s broad immunity theory are sobering,” prosecutors wrote.

The prosecutors argued that based on Trump’s perceived scope of immunity, a president could in theory command the National Guard to murder his critics and then declare immunity from prosecution because the command was made as part of his official work. They also argued that a president could in theory accept bribes from foreign governments in exchange for the U.S. government’s nuclear secrets without fear of punishment under Trump’s idea of immunity.

Trump’s attorneys responded that the scope of immunity must be broad to be able to encompass all work that falls within the “outer perimeter” of a president’s official duties.

All of the alleged criminal actions referenced in Smith’s indictment are within that scope, they argued.

Defense attorneys also said that Smith wrongly mentioned violence that occurred at the Jan. 6 Capitol riot, for which he did not directly charge Trump. Additionally, they said Smith failed to mention that Trump encouraged “peaceful” protesting on Jan. 6 and that Smith omitted genuine concerns about the 2020 election results.

“The government’s brief … omits the vigorous disputes and questions about the actual outcome of the 2020 Presidential election — disputes that date back to November 2020, continue to this day in our nation’s political discourse, and are based on extensive information about widespread fraud and irregularities in the 2020 election,” they wrote, citing an anonymously authored report containing a wide range of claims about election fraud that swayed results, some of which have been debunked.

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U.S. District Judge Tanya Chutkan, who originally denied Trump’s requests that his case be dismissed, has put the case on hold while the appellate court now weighs his arguments.

Chutkan scheduled the trial to begin in March, but that is now widely expected to be delayed while the appeals process plays out.