US federal prosecutors on Wednesday released a redacted motion arguing that former president Donald Trump does not have immunity from prosecution for crimes related to the 2020 election because they were committed outside of official presidential conduct.
This case is a remand of the US Supreme Court’s decision in Trump v. United States on July 1, 2024, in which the court held that presidents are immune from prosecution for certain official conduct. Specifically, the president’s core constitutional powers are immune from prosecution and official acts are at least presumptively immune from prosecution. The presumption may be overcome showing that the act does not infringe on the executive branch’s authority or function. Additionally, the court found that acting in the capacity of a presidential candidate is not a presidential official act. The court found that Trump is “absolutely immune from prosecution for the alleged conduct involving his discussions with Justice Department officials” and his “threatened removal of the Acting Attorney General.” However, the case was remanded to the US District Court for the District of Columbia to determine whether the remaining alleged criminal acts were immune.
In Wednesday’s filing, the prosecution discussed Trump’s alleged conversations with his vice president Mike Pence, in which Trump attempted to convince him to use his power to certify the 2020 presidential election in Trump’s favor. The prosecution argued that the president has no power to determine the next president and therefore criminal liability for those acts does not infringe on executive authority or function. They concluded that Trump’s presumptive immunity for prosecuting these conversations could be rebutted.
The prosecution reached the same conclusion for Trump’s alleged contacts with elected Republican elected officials to convince them of fraudulent election claims and prevent Biden’s presidency. They supported it by arguing that the federal executive branch has no role in the state-electoral process.
For their allegations of organizing fraudulent state electors, the prosecution argued that since the president “has no official responsibilities related to the organization or voting of electors,” because the US Constitution vests that power solely in the states, it is an unofficial act and could have its presumptive immunity rebutted if it were an official act.
Lastly, the prosecution argued that Trump’s alleged false election fraud claims made on January 6, 2021 were unofficial acts. They characterized Trump’s January 6 Save America Rally as a campaign rally by pointing to evidence such as its planning and funding by private supporters and Trump’s historical use of the term “rally” for his campaigns. The prosecution also characterized Trump’s election fraud tweets from January 6 as unofficial acts because the content was related to supporting his candidacy in addition to using an account substantially used for private matters such as posting photos of golfing with celebrities.
The district court’s forthcoming ruling will have a large role in shaping the contours of Presidential criminal immunity. The recent doctrine has sparked controversy from the competing concerns of incumbent presidents being wary of politicized criminal prosecutions by future presidents and presidents exercising executive power to commit crimes threatening the constitutional order with impunity.
