Special counsel prosecutors urged a federal judge to reject Donald Trump’s attempt to dismiss his indictment related to his efforts to overturn the 2020 election results, asserting on Thursday that there was no such thing as absolute immunity for former presidents for conduct that occurred in office.
The response to Trump’s motion to dismiss his indictment, filed in federal district court in Washington this summer, amounted to a sharp repudiation of his unparalleled interpretation of executive power and caused prosecutors to categorically state former presidents could be charged.
In their 54-page filing to the US district court judge Tanya Chutkan, prosecutors in the office of the special counsel Jack Smith cited a range of arcane and academic writings including the Federalist Papers. But their central argument was that in the United States, the law applied to everyone.
“The principle that no one is above the law underlies the universal consensus that a president may be subject to criminal prosecution at some point,” the filing said. “But the defendant can identify no support for his broad claim that he is forever entitled to absolute immunity.”
When Trump first urged the dismissal of the case two weeks ago, his lawyers sought to recast Trump’s attempts to block the transfer of power as an effort to protect election integrity that fell within the “outer perimeter” of his presidential duties, which meant he could not be prosecuted.
That kicked off what is almost certain to become an extended legal battle that could ultimately reach the US supreme court. As that litigation continues, Trump’s lawyers have telegraphed they will make additional motions to have the charges thrown out before the trial starts in March.
In their new filing, prosecutors derided the assertion that Trump was acting within even the outer limits of his official duties as president when he engaged in schemes to reverse his defeat, including obstructing the January 6 congressional certification.
Trump’s efforts – ranging from his efforts to co-opt the justice department into investigating bogus election fraud claims to assembling fake slates of electors declaring him the winner in states he lost – were actions he undertook for political benefit as a candidate, the filing said.
“The allegations focus principally on the defendant’s actions as a candidate for elective office,” the prosecutor James Pearce wrote. “The defendant acted deceitfully or corruptly to secure a personal benefit to himself as a presidential candidate, not to carry out constitutional obligations.”
Prosecutors also argued that Trump was trying to bend both the justice department’s internal view that sitting presidents cannot be prosecuted and a supreme court case conferring immunity to former presidents in civil cases to claim protection from criminal charges for conduct he undertook in office.
The Trump legal team have been fixated on Nixon v Fitzgerald (1982), in which the justices found that presidents have absolute immunity from damages liability for acts related to their presidential duties, because it remains unsettled whether the principle also applies in criminal cases.
Prosecutors argued Trump’s arguments could not work because it would have the effect of placing former presidents above the law, and added that their reading of the case was simply wrong. The chief justice, prosecutors wrote, recognized the immunity was limited to “civil damages claims”.
Moreover, under Trump’s theory, prosecutors wrote, presidents could accept a bribe, or order the FBI director to plant evidence against a political rival, or order the national guard to murder critics, or sell nuclear documents to foreign adversaries while in office – and face no legal repercussions when at the end of their terms.
Trump already faced an uphill struggle with his motion to dismiss, given a federal judge in Washington DC last year ruled in a separate civil suit that not everything Trump did as president was covered by presidential immunity. That case, Blassingame v Trump, is now under appeal at the DC circuit.
