Trump’s Lawyers Ask Judge to Dismiss Jack Smith’s 2020 Indictment, Citing ‘Presidential Immunity’

Donald Trump's attorneys on Thursday asked a federal judge to throw out in its entirety Special Counsel Jack Smith's criminal indictment charging the former president with trying to overturn the 2020 presidential election.

The former president's 52-page motion to dismiss the indictment centers around an untested legal argument that Trump had "presidential immunity" that protects him from any criminal charges tied to his actions leading the country.

"Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the 'outer perimeter,' but at the heart of his official responsibilities as President," Trump's lawyers argue. "In doing so, 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."

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election through a series of events including the Jan. 6, 2021, insurrection at the U.S. Capitol. He has pleaded not guilty to all charges. A trial is scheduled to begin on March 4, 2024, in Washington, D.C.

Trump's motion marks the latest attempt from the GOP's 2024 presidential front-runner to undercut the basis of the criminal charges against him and push back the timing on any trials.

In the Washington, D.C., federal case, Trump's lawyers late last month asked U.S. District Court Judge Tanya Chutkan to give them time extensions on key motions, a move that Smith's prosectors called out as being done "for the purpose of delaying trial." They also have a motion pending before Chutkan to move the upcoming trial out of the nation's capital, a long-shot that most legal experts doubt will be approved.

In South Florida, Trump's lawyers late Wednesday night requested a postponement — until after the November 2024 election — before going ahead with a separate federal trial on charges he mishandled classified documents after leaving the White House.

That case is currently scheduled for jury selection in May, but Trump's lawyers there argued that date conflicts with the Washington, D.C., criminal case that he's now seeking to get thrown out entirely.

Trump is also pushing to nix his criminal charges in Georgia, where Fulton County District Attorney Fani Willis indicted the former president alongside 18 other co-defendants in a sweeping election racketeering case.

There, the former president's lawyers have largely relied on the filings of those other people charged in the same case by piggybacking onto their motions.

Thursday's Trump legal filing in the Washington, D.C., federal case presses Chutkan well beyond previous defense motions with its targeted attack on Smith's total case.

It argues Trump can't be criminally charged for doing things he's allowed to do as a president, from his public statements and tweets about purported 2020 election fraud to his attempts to get the Justice Department to weigh in on his behalf once the results didn't go his way.

Trump's lawyers also pressed Chutkan to consider a 1982 Supreme Court opinion that found former President Richard Nixon had absolute immunity from liability for civil damages tied to his time in the White House.

They note that ruling covered "acts within the outer perimeter" of the president's official duties, and they push for it to be applied now to a former president under criminal indictment.

The former president's latest legal arguments suggest they may ultimately push to get their case litigated beyond Chutkan. His lawyers have been signaling for months they think they can ultimately succeed on appeal before the U.S. Supreme Court in getting the criminal charges tossed out.

One prong of that defense comes in a claim Trump's lawyers are making that presidential immunity has its roots in the U.S. Constitution. They argue that "impeachment and conviction by the Senate provide the exclusive method of proceeding against a president for crimes in office."

"Here, President Trump was acquitted by the Senate for the same course of conduct," the lawyers wrote in reference to the early 2021 Senate trial after the Jan. 6 insurrection at the U.S. Capitol that concluded with a 57-43 vote against conviction that fell well short of the two-thirds majority needed.

"No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act," Trump's lawyers said.

They added: "In addressing this question, the Court should consider the Constitution’s text, structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines, and considerations of public policy."

The Trump legal team's argument is already drawing fierce pushback given the remarks after that Senate trial concluded in February of 2021 from Senate Minority Leader Mitch McConnell, R-Ky.

In justifying his vote against Trump's conviction, McConnell explained first that there was "no question that President Trump is practically and morally responsible for provoking the events of that day."

McConnell then went on to say why he thought the House's impeachment vote and subsequent Senate trial wasn't warranted because Trump by that point had already left office. Instead, he urged the Justice Department to consider holding the former president accountable via indictment.

“We have a criminal justice system in this country. We have civil litigation. And former Presidents are not immune from being held accountable by either one," McConnell said.