Donald Trump asked a federal appeals court late on Saturday to dismiss special counsel Jack Smith‘s case accusing the former president of unlawfully plotting to overturn the results of the 2020 election.
Trump has “absolute immunity from prosecution for his official acts” as president, including him seeking to “advocate for and defend the integrity of the federal election, in accord with his view that it was tainted by fraud and irregularity,” Trump’s lawyers argued in a 71-page filing
U.S. District Judge Tanya Chutkan, an appointee of former President Barack Obama, previously rebuffed Trump’s immunity claim, saying the defendant’s “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.” The judge also rejected Trump’s First Amendment defense.
Trump’s legal team filed an appeal on the immunity claim. They also requested a pause in the proceedings, which was then granted. Smith’s team responded by asking the appeals court to consider the immunity claim on an expedited basis. The appellate court accepted the request and oral arguments are scheduled for January 9.
Smith’s team separately asked the Supreme Court to address the presidential immunity question before the federal appeals court had a chance to rule on the matter — part of a bid to keep the trial schedule intact — but the high court rejected the request last week. The trial is currently set to start on March 4, 2024. The date is one day before Super Tuesday, which is significant as Trump is running a campaign seeking another term in the White House.
Trump’s lawyers said their client may not be criminally prosecuted for specific conduct while in office unless he was impeached by the House and then convicted by the Senate. Indeed, in a similar matter, Trump was impeached by the Democrat-led House for allegedly encouraging the U.S. Capitol breach on January 6, 2021, but the GOP-led Senate acquitted him. The indictment is “unlawful and unconstitutional,” Trump’s legal team said, arguing the district court’s order should be reversed and Smith’s case dismissed because the former president is being subject to a double jeopardy violation.
On the day the indictment was unsealed in August, Smith said the “unprecedented assault on the seat of American democracy” on January 6 was “fueled” by Trump’s alleged lies “targeted at obstructing a bedrock function of the U.S. government, the nation’s process of collecting, counting, and certifying the results of the presidential election.”
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Trump is facing three other criminal cases, including another one led by Smith over the former president’s handling of classified documents, as well as civil litigation. Trump has broadly denied any wrongdoing and has argued that politically motivated prosecutors are conducting a “witch hunt” against him.