Washington — Former President Donald Trump on Thursday asked two courts to dismiss separate criminal cases brought against him, and an attorney said Trump will seek to pause a civil fraud trial that is underway in New York.
The pair of requests to toss out the charges were made in filings to the federal judge in Washington overseeing the case involving an alleged illegal effort to thwart the transfer of presidential power after the 2020 presidential election, and to a state judge in New York, where he was indicted on 34 New York state felony counts of falsification of business records.
In a 52-page motion filed in the federal election case, lawyers John Lauro and Todd Blanche argued that Trump has presidential immunity from prosecution for actions performed within the “outer perimeter” of his official responsibility.
“Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President,” they wrote. “In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties.”
Trump faces four charges brought by special counsel Jack Smith related to his actions surrounding the 2020 election and has pleaded not guilty.
The special counsel’s office declined to comment.
Trump’s request in the 2020 election case
The new motion argues the conduct for which Trump was charged — largely that he allegedly worked to resist the results of the 2020 presidential election and conspired to defraud the U.S. with 6 unnamed co-conspirators — was performed not just as a candidate for the presidency, but also as the sitting president, a distinction that the attorneys said shields him from prosecution.
Trump’s attorneys stipulated the former president “emphatically denies the truth of any allegations in the indictment.”
The motion to dismiss the indictment was not unexpected, as Lauro said publicly after Trump was indicted in August that he would seek to have the charges thrown out. Still, it provides the first thorough look at the arguments from his legal team.
Whether a one-time president can be charged for conduct committed while in office related to presidential acts, the Trump legal team wrote, remains a “serious and unsettled question” and they argued U.S. District Judge Tanya Chutkan, who is overseeing the case, should deem the charges unlawful as they involve actions Trump carried out as the nation’s chief executive.
“234 years of unbroken historical practice — from 1789 until 2023 — provide compelling evidence that the power to indict a former President for his official acts does not exist,” the attorneys wrote.
Despite their client no longer holding public office, Trump’s legal team argued the unique and sensitive nature of the job requires that the president not be mixed up with threats of legal action. Such immunity, they contended, encompasses all of the conduct that is alleged in the special counsel’s indictment, from discussions about the election to tweets with unfounded claims of widespread voter fraud and meetings with Justice Department and state officials about the matter.
“Ensuring the integrity of federal elections falls within the President’s official duty,” they wrote. “Similarly, taking steps to ensure that fraud and other irregularities do not vitiate the outcome of a federal election also falls within the President’s responsibility.
In his August indictment, special counsel Jack Smith appeared to have anticipated this argument, writing that Trump had the right to challenge the election and raise issues of concern with the courts, which he did unsuccessfully. But Smith also alleged that Trump went beyond those lawful means, “discounting legitimate votes and subverting the election results” in criminal conspiracies to allegedly devoid the American public of its right to lawfully elect the president and obstruct Congress’ work on Jan. 6, when lawmakers convened to certify Electoral College votes.
Lauro and Blanche also argued that the only method of proceeding against a president for crimes committed while in office is impeachment by the House and conviction by the Senate. Trump was impeached by the House in January 2021 on a single article of incitement of insurrection related to his actions surrounding the Jan. 6, 2021, assault on the U.S. Capitol, but was acquitted by the Senate.
Citing his acquittal, Trump’s lawyers argued “he thus remains immune from prosecution,” and said the special counsel “cannot second-guess the judgment of the duly elected United States Senate.”
The former president’s defense team contended that public policy “overwhelmingly” supports a finding of immunity, and warned the threat of criminal prosecution would have a chilling effect on the decision-making of presidents.
“The threat of criminal prosecution poses a greater risk of deterring bold and unhesitating action than the threat of civil suit, and, therefore, requires at least the same immunity to ensure the President maintains the ‘maximum ability to deal fearlessly and impartially with the duties of his office,'” they wrote.
A key component of Smith’s indictment against the former president centers around his alleged actions as a candidate for office, but the attorneys wrote Thursday that Trump’s “dual character” as president and candidate during the 2020 election cycle “still lies within the ‘outer perimeter’ of his official responsibilities and is immune from prosecution.”
Trump has in prior court fights waged while he was in office argued that he has absolute immunity from criminal proceedings, notably as part of his efforts to shield his financial records from congressional and local investigators.
In a case involving a grand-jury subpoena issued by then-Manhattan District Attorney Cy Vance in 2019, Trump argued the Constitution granted him immunity from demands for records and testimony by local authorities. The Supreme Court, however, ruled in July 2020 that Vance could obtain the business records.
In an opinion written by Chief Justice John Roberts, the majority concluded 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.
For her part, Chutkan had previously ruled against a claim of executive privilege Trump asserted over his White House records in an attempt to shield them from the now-defunct House Select Committee investigating the Jan. 6 Capitol attack. Trump sued the committee and the National Archives and Records Administration in an attempt to halt the transfer of his records, citing the privilege.
Although involving different legal theories, Chutkan dismissed Trump’s claims of privilege, writing, “Presidents are not kings, and Plaintiff is not President.”
In addition to the four federal counts in Washington, Trump was indicted on state charges in New York and Georgia, and federal charges in South Florida. He has pleaded not guilty to all charges.
Motion to dismiss New York criminal case
Trump’s attorneys also sought dismissal of his criminal case in New York in a filing made public Thursday. Trump was indicted on March 30 on 34 state felony counts of falsification of business records, related to an alleged “hush money” payment to an adult film star before the 2016 presidential election. He pleaded not guilty.
His attorneys, Blanche and Susan Necheles, have long indicated they would file a motion to dismiss the case.
They wrote in the 48-page motion that Manhattan District Attorney Alvin Bragg and his predecessor led “a five-year meandering, halting, and roving investigation that entailed inexplicable and unconstitutional delay.”
The investigation began in 2018, with Vance focused on the alleged “hush money” payments to adult film star Stormy Daniels that would ultimately lead to charges. But the inquiry expanded into a probe of tax and business fraud involving the state’s attorney general, who was also investigating allegations related to the Trump Organization’s valuation of its properties. Bragg narrowed the investigation back to its original focus before asking a grand jury to indict in March.
Trump’s attorneys called the charges “politically motivated” in their motion to dismiss, saying it is “marred by legal defects, procedural failures, discovery violations, and a stubborn refusal to provide meaningful particulars regarding [the] theory of the case.”
They cited the length of the investigation, saying it “interfered with his ongoing presidential campaign, and violated his due process rights,” and said the charges relate to transactions that are beyond the state’s statute of limitations.
A spokesperson for Bragg said, “We’ll respond in court papers.”
The criminal case is being considered just two blocks away from a civil court where Trump and his company are currently on trial on allegations raised by New York Attorney General Letitia James in her parallel investigation.
Appeal seeking stay of New York civil fraud case
Just minutes after Trump’s motion to dismiss his Washington D.C. case was filed and his New York filing became public, a lawyer informed the judge in his civil trial that on Friday morning he’ll be seeking to pause the trial.
The attorney filed a notice of appeal Thursday morning indicating they’re also asking for a stay of a Sept. 26 ruling by the judge finding Trump, two of his sons, and the Trump Organization liable for years of “persistent” fraud.
That case revolves around claims that Trump and those around him systematically overvalued properties by hundreds of millions of dollars, and Trump’s personal net worth by billions, in order to receive favorable loans. The judge’s pretrial ruling finding Trump liable for fraud also included an order for the dissolution of many of Trump’s New York-based businesses.
James’ office is seeking $250 million as well as other sanctions designed to hamper the Trumps’ ability to do business in New York.
In that case, as in the other two, Trump and his legal team have accused authorities of pursuing him out of political animus.
Trump attended the first three and a half days of the trial, frequently taking time to address media outside the courtroom, calling the case a “sham” and accusing James, who was in attendance at the trial, of political gamesmanship.
Trump has hurled insults at the judges in all three cases, but on Tuesday was hit with a gag order in his civil trial after he made a post on his social media site about the judge’s clerk.
In the trial’s first four days, two outside accountants who worked for Trump and his company testified, as well as its current controller.
Informed of the upcoming effort to halt the trial Thursday, the judge said it would continue as scheduled for now.
— Ash Kalmar contributed to this report.
