“No one in this country, including the president, is above the law,” special counsel Jack Smith’s team wrote in a 54-page filing to the judge presiding over the landmark case.
Trump, the frontrunner for the 2024 Republican presidential nomination, is due to go on trial in Washington in March next year for allegedly conspiring to overturn the results of the November 2020 election won by Democrat Joe Biden.
In a motion filed with US District Judge Tanya Chutkan two weeks ago, the former president’s lawyers argued that the charges should be dismissed because Trump is “absolutely immune from prosecution”.
Prosecutors in the special counsel’s office rejected that argument, urging Chutkan to deny Trump’s request.
“He is subject to federal criminal law, as are more than 330 million other Americans,” they said. “No court has ever alluded to the existence of absolute criminal immunity for former presidents. “The implications of defendant’s unlimited immunity theory are frightening,” they added.
“It would grant absolute immunity from prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member,” they said, or “a president who sells nuclear secrets to a foreign adversary.”
Trump’s bid to invoke the presidential immunity defence is seen as a long shot by legal observers, but it could result in a delay in the start of the trial as the argument potentially winds its way up to the conservative-dominated Supreme Court.
Trump’s attempts to use the “absolute immunity” defence in other cases have been rejected by judges, but the nation’s highest court has never directly ruled on whether a former chief executive is immune from prosecution.
Trump is the first former US president to face criminal charges.
‘Unsettled question’
Trump’s lawyers, citing a Supreme Court case involving former president Richard Nixon, said the law provides the president with “absolute immunity” “for acts within the ‘outer perimeter’ of his official responsibility”.
As chief executive, they argued, Trump had a responsibility to “ensure the integrity of the election” and was within his rights to challenge the outcome of the 2020 vote.
“Because President Trump is absolutely immune from prosecution for such acts, the court should dismiss the indictment,” they said.
While arguing that Trump cannot be prosecuted, his lawyers acknowledged that the Nixon case they cited dealt with the civil liability of a former president, not alleged criminal conduct. “The issue remains a ‘serious and unsettled question’ of law,” they said.
The case before Chutkan charges Trump with conspiracy to defraud the United States and conspiracy to obstruct an official proceeding – the 6 January 2021 joint session of Congress that was attacked by a mob of Trump supporters.
Other criminal cases against Trump include a racketeering indictment in Georgia for allegedly conspiring to overturn the election results in the southern state, and a trial in Florida in May 2024 on charges of mishandling top-secret government documents.
Trump and his two eldest sons are also currently involved in a civil fraud trial in New York for allegedly inflating the value of their real estate holdings to obtain more favourable bank loans and insurance terms.