Trump demands judge dismiss Jan. 6 indictment on 'absolute presidential immunity' claim

Donald Trump asked a federal judge on Thursday to dismiss his indictment in Washington, D.C., alleging he conspired to overturn the results of the 2020 election, arguing he has "absolute presidential immunity" from prosecution.

The 52-page filing claims that Trump has been unfairly charged for acts lying "within the outer perimeter" and "at the heart of his official responsibilities as president."

Trump's defense lawyer John Lauro writes that Trump's "efforts to secure election integrity" in 2020 and up to Jan. 6, 2021, were within the scope of his duties and that special counsel Jack Smith and fellow prosecutors have wrongly concluded that his motives were "impure," the filing states, or that he "knew" widespread reports of election and voter fraud were untrue and that he chose to seek them anyway.

The filing is the first substantial one from Trump's attorneys that even begins to address the issue of Trump's intent more thoroughly, though it runs up against existing widespread reporting as well as direct witness testimony from Trump White House officials and former members of the Trump administration who said they informed him repeatedly that election fraud was not rampant and would not change the outcome of the 2020 election that he lost.

Lauro contends the U.S. Constitution and U.S. Supreme Court and hundreds of years of history and tradition "all make clear" the president's motivations and intent are "not for this court to decide" but rather, sit cleanly within his presidential responsibilities, therefore making him "absolutely immune from prosecution."

Trump was charged in August in federal district court in Washington, D.C., on four felony counts. Prosecutors allege Trump pursued unlawful means to discount legitimate votes and attempt to subvert the election and he did so, specifically, the special counsel has argued, by perpetrating three distinct conspiracies. They were: a conspiracy to defraud the United States using "dishonesty, fraud and deceit to impair, obstruct and defeat the lawful federal government;" a conspiracy to corruptly obstruct and impede the Jan. 6 congressional proceeding; and a conspiracy against the right to vote.

Trump is also charged with a single count of obstruction of an official proceeding.

Lauro, however, has rendered these charges down in Thursday's filing to terms his client deems more savory. Trump did not use deceit or dishonesty when discussing his claims of voter fraud online, or at rallies, or on television, Lauro argues.

Trump's public messaging about the election being rigged against him were valid concerns, the lawyer claims.

But, in reality, there was no fraud, and none sufficient enough in the 2020 election to change the outcome of Trump losing to now-President Joe Biden. More than 50 pieces of litigation Trump brought asserting fraud were thrown out and exhaustive investigations by federal, state and local entities as well as press organizations determined there were no major instances of it.

A full year after the 2020 election, a probe by The Associated Press confirmed that in the series of battleground states where Trump insisted he had been targeted by a political "witch hunt" seeking his ouster, there were fewer than 475 cases of fraud out of more than 25 million votes cast.

Trump's tweets about election fraud in Georgia and Wisconsin, his messages "criticizing Pennsylvania legislators' claim about slates of electors," "tweets urging Americans to protest fraud in the federal election," or tweets about Pence's authority regarding the certification, Lauro wrote, shouldn't be deemed evidence of criminality because this all fell under the scope of Trump's official duties.

The same applies to Trump's discussions with members of Congress or Pence, the defense attorney writes.

While claiming "absolute presidential immunity," however, Lauro simultaneously notes, "no court has addressed whether such presidential immunity includes immunity from criminal prosecution for the president's official act."

"But the fact that the doctrine of Presidential immunity is rooted in the separation of powers dictates that immunity must extend to criminal prosecution as well as civil liability. While the 'public interest … in criminal prosecutions' may be important.. it is not important enough to justify abrogating the separation of powers, the most fundamental structural feature of our constitutional system," Lauro wrote.

Trump's defense argues that the U.S. Supreme Court found already in Nixon v. Fitzgerald that a president must be "absolutely immune from damages liability predicated on his official acts," given the sheer "uniqueness" of the office of the presidency.

Holding a president liable civilly in this sense would have a "chilling effect" on decision-making, he writes.

"To hold otherwise would be to allow the president's political opponents to usurp his or her constitutional role, fundamentally impairing our system of government," the filing states.

The "exclusive" method to hold a president accountable is through impeachment proceedings for crimes in office, he contends, noting that while Trump was impeached in 2021 on charges arising from the same conduct alleged by prosecutors, he was not convicted by the Senate.

"The Special Counsel cannot second-guess the judgment of the duly elected United States Senate," Lauro argued.

No prosecutor, whether state, local, or federal, that has this authority has ever sought to prosecute a president before, he continued.

Thursday's filing was not a bombshell — Lauro hit the press circuits in August after Trump was indicted and declared that he would try to have the charges thrown out altogether.

Prosecutors appear to have anticipated this. When Trump was indicted this summer in Washington, D.C., special counsel Smith noted that Trump had the right to challenge the election results in the courts. What he did not have a right to do was go beyond existing U.S. laws to subvert the election or discount or discredit legitimate votes for the presidency.

Trump has claimed absolute immunity in other cases where he has tried to keep his financial records private from Congress or from criminal and civil investigators.

In 2020, however, Chief Justice John Roberts concluded in Trump v. Vance, that some 200 years ago, the Supreme Court established that "no citizen, not even the President, is categorically above the common duty to produce evidence when called upon in a criminal proceeding."

"We reaffirm that principle today and hold that the President is neither absolutely immune from state criminal subpoenas seeking his private papers nor entitled to a heightened standard of need," Roberts wrote.

Trump's attempt to invoke executive privilege has been shot down by Judge Chutkan before in another matter. When he tried to shield his records from the House Select Committee to Investigate the Jan. 6 Attack on the U.S. Capitol and National Archives, she denied the request, noting at the time, that President Joe Biden, as incumbent president, had waived executive privilege rights over his presidential records, arguing the public's interest outweighed Trump's.