Trump made his argument in a filing with the US Court of Appeals in Washington, which is expediting consideration of whether Trump should be immune to the charges brought by Special Counsel Jack Smith for the actions he took in 2020 that culminated in a deadly attack on the US Capitol on Jan. 6, 2021.
“President Trump has absolute immunity from prosecution for his official acts as President,” according to the 71-page filing. “The indictment alleges only official acts, so it must be dismissed.”
The appeals panel has said it will hear arguments Jan. 9. The immunity question is playing out at the DC Circuit after the US Supreme Court refused to decide whether Trump has immunity for his efforts to overturn his election loss.
Smith has asked the appeals panel to place the case on a fast track in an effort to avoid delaying a criminal trial against Trump set to start on March 4. A federal district judge previously ruled that Trump does not have presidential immunity from prosecution. The trial judge overseeing the case has put it on pause until the immunity issue is resolved.
The decision by the appeals court will mark a watershed moment in the first-ever criminal prosecution of a former president, but likely won’t be the last word, as the Supreme Court is expected to eventually rule on the matter after the appeals court issues its opinion.
Trump and his lawyers have previously argued that he should be immune from prosecution because Smith’s indictment concerns “purely official acts” and charging him would amount to double jeopardy because he already faced impeachment by the House of Representatives but wasn’t convicted by the Senate.
“Under the Constitution’s balanced, structural approach, a President may be prosecuted, but only if he is first impeached, tried, and convicted in the U.S. Senate,” according to a Dec. 20 legal filing by Trump’s team to the Supreme Court. They made the filing in opposition to Smith’s request to expedite a decision.
“American history abounds with examples of Presidents who were accused by political opponents of committing crimes through their official acts,” according to Trump’s Dec. 20 filing. “Yet no President was ever prosecuted, until this year. The unbroken tradition of not exercising the formidable power of criminally prosecuting a President for official acts — despite ample motive and opportunity to do so, over centuries — implies that the power does not exist.”