Donald Trump’s legal team said it identified a “fatal defect” in the Washington, D.C., Court of Appeals ruling that rejected the former president’s argument that he is protected from prosecution over conduct that occurred during his time in office.
Trump’s attorneys submitted a 52-page briefing to the U.S. Supreme Court on Tuesday ahead of the high court’s ruling on the former president’s push for absolute immunity as he faces criminal charges accusing him of unlawfully attempting to remain in power after losing the 2020 election. Arguments are set to take place before the justices on April 25.
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The defense team, as well as Trump, have argued that presidents have to be given “total immunity” for actions they take while serving in office in order to perform their jobs fully and without fear of repercussion. A three-judge federal appeals panel unanimously rejected that argument last month, writing, “Trump’s stance would collapse our system of separated powers by placing the President beyond the reach of all three Branches.”
In Tuesday’s brief, Trump’s attorneys argued that the appeals ruling created an “unconstitutional exception to immunity” that only applies to the former president’s federal election subversion case. The exception, the defense team wrote, is that the D.C. Court of Appeals found Trump’s motives behind the actions listed in his indictment to be “improper” because it was out of a desire to remain in office.
This “supposedly ‘narrow’ exception,” then, would end up dragging federal courts into additional legal battles, the defense wrote, “because virtually everything that other first-term Presidents do—whether allegedly criminal or not—is, at least, partly, in some way motivated by the desire to remain in office.”
“Perhaps [the appeals courts] find the theory attractive because they believe that
making immunity turn on ‘the specific charges in the Indictment’ … would effectively deny criminal immunity to President Trump only, while leaving all other Presidents immune,” read the brief.
“If so, that is not a strength but a fatal defect of the theory,” it continued.
Newsweek reached out to Trump’s campaign via email for additional comment late Tuesday night.
Trump has sought to dismiss all four of his criminal indictments on arguments of presidential immunity. In total, he faces 88 felony counts while running for reelection.
The Department of Justice has long held that presidents cannot be criminally indicted while in office, claiming that prosecution “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.” The Supreme Court also ruled in 1982 under Nixon v. Fitzgerald that a president could not be held liable in civil cases for actions they took as part of their official duties.
In a separate case in 1997, the high court ruled in Clinton v. Jones that a president could face civil litigation for actions they took prior to holding office.
The Supreme Court has not faced questions on whether presidential immunity applies to criminal charges stemming from the president’s actions while in office.
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.