Trump immune, lawyers say
They argue he can’t be prosecuted in Georgia probe
Lawyers for former President Donald Trump in the election interference case in Georgia asked Monday to have the criminal charges against him there dismissed based in part on an argument Trump is also making in the federal criminal case against him: that presidents should enjoy sweeping immunity from criminal prosecution for “official acts” taken while in office.
“The indictment in this case charges President Trump for acts that lie at the heart of his official responsibilities as president,” the lawyers in the Georgia case wrote in the new motion. “The indictment is barred by presidential immunity and should be dismissed with prejudice.”
In August, a grand jury in Fulton County, Ga., indicted Trump and 18 of his allies on racketeering and other state charges as part of what prosecutors say was a multi-pronged effort to overturn his 2020 election loss in Georgia. Four of the defendants have pleaded guilty and pledged to cooperate with prosecutors.
Among other legal troubles, Trump has also been indicted on four federal charges in Washington for his attempts to remain in power after Joe Biden defeated him nationally in 2020. A federal appeals court will hear arguments today on whether Trump should have absolute immunity from prosecution.
In the federal case, which is likely to end up before the U.S. Supreme Court, Trump’s lawyers have argued that allowing a president to be held criminally liable for acts committed in office would violate the separation of powers principle and would “constrain the president’s exercise of executive judgment through threats of criminal prosecution.”
Trump’s immunity claim in Georgia takes a similar tack. His motion notes that the Supreme Court has ruled that current and former presidents enjoy immunity from liability for civil damages related to official acts. His Georgia lawyers argue that this protection should apply to the criminal realm as well.
“Presidential immunity from criminal prosecution for official acts has deep roots in the separation of powers and principles of federalism,” lawyers Steven Sadow and Jennifer Little wrote.
Trump’s lawyers also filed two other motions in Georgia on Monday. One cites the Constitution’s double jeopardy clause and argues that Trump’s acquittal by the Senate in February 2021 after his second impeachment shields him from being prosecuted in Georgia for the same conduct.
Another motion argues that Trump “lacked fair notice that his advocacy in the instance of the 2020 presidential election could be criminalized.”
Trump, his lawyers added, is entitled, “like all citizens,” to have “fair warning as to where the line is drawn which separates permissible activity from that which is allegedly criminal.”
Trump’s lawyers are also seeking to dismiss the Georgia case on the grounds that his allegations of election fraud amounted to political speech protected by the First Amendment.
The office of District Attorney Fani Willis of Fulton County, which is prosecuting the Georgia case, declined to comment Monday morning, but it is expected to push back against Trump’s legal arguments in court filings.
The immunity argument in the federal case was rejected by Judge Tanya Chutkan of U.S. District Court in December. “Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time,” Chutkan wrote in her ruling, “and that position does not confer a lifelong ‘getout-of-jail-free’ pass.”
Trump appealed that ruling. The office of the special counsel prosecuting the federal case has since argued to the appeals court that while a president plays “a vital role” in American government, “so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process.”
Trump’s lawyers in the federal case have also raised the question of whether he can legally be prosecuted after his second impeachment trial. That argument is considered to be a longshot.
The flurry of legal filings in Georgia comes as Trump is seeking to delay any trial there beyond the August start date proposed by Willis’ office. Trump is seeking to slow down the federal case as well.
At the same time, Trump is trying to avoid being tossed off the 2024 primary ballot in Colorado and a number of other states. In December, the Colorado Supreme Court ruled that he is disqualified from holding office again because of his actions related to the Jan. 6, 2021, riot at the U.S. Capitol.
The U.S. Supreme Court announced Friday that it would take up the matter of whether Trump — who polls show to be leading his Republican primary opponents by wide margins — is eligible to appear on the state’s primary ballot. That decision could resolve the question nationally.