Federal prosecutors said Thursday that Donald Trump is “not above the law” as they urged a judge to reject the former president's efforts to dismiss the case charging him with plotting to overturn the 2020 presidential election.
Lawyers for Trump had asked U.S. District Judge Tanya Chutkan earlier this month to toss the federal election subversion case, asserting that he was immune from prosecution for actions he took while fulfilling his duties as president.
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Special counsel Jack Smith's team responded in its own filing Thursday that there is nothing in the Constitution, or in court precedent, to support the idea that Trump or any other former president cannot be prosecuted for criminal conduct committed while in the White House.
“The defendant is not above the law. He is subject to the federal criminal laws like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens,” prosecutors wrote.
The question now heads to a decision from Chutkan, who is being asked to wade into the legally untested realm of a former president's claim of immunity from criminal prosecution. She's not likely to have the final word, though, as defense lawyers — if they fail to persuade Chutkan — will have the opportunity to press their arguments before a federal appeals court or, ultimately, a Supreme Court with a clear conservative majority.
Trump was charged in August in a four-count indictment in federal court in Washington with scheming to overturn the election that he lost to Democrat Joe Biden in the run-up to Jan. 6, 2021, when pro-Trump rioters stormed the U.S. Capitol in a violent but ultimately failed effort to halt the transfer of power.
The Supreme Court has held that presidents are immune from civil liability for actions related to their official duties but it has never addressed the question of whether that immunity shields a president from criminal prosecution.
Trump’s defense lawyers have seized on the absence of rulings to make the case that he must be considered exempt from prosecution, arguing that the the actions he’s accused of taking fall within the bounds of the presidency.
But prosecutors rejected that argument on multiple grounds, saying the steps Trump took to stay in power — including by advancing false claims of voter fraud in an effort to block the formal counting of electoral votes — are well outside Oval Office duties and responsibilities.
They also said Trump's claims of immunity directly conflict with the nation's Constitution, which allows for the criminal prosecution of a president for “acts committed during — and ultimately resulting in the president’s removal from — the presidency."
“The defendant, however, would turn the Impeachment Judgment Clause on its head and have the Court read it as a sweeping grant of immunity that forbids criminal prosecution in the absence of a Senate conviction — which, among other things, would effectively preclude any form of accountability for a president who commits crimes at the end of his term of office," prosecutors said.
Smith's team also said that while some legal commentators have objected to Justice Department legal opinions stating that sitting presidents cannot face federal indictment, “there has been universal agreement that a former president may be subject to federal criminal prosecution — a principle recognized in the Constitution and rooted in historical practice.”
The case, currently set for trial on March 4, 2024, is one of four criminal prosecutions that the former president is facing. Earlier this week, Chutkan, responding to a request from Smith's team, imposed a limited gag order on Trump barring him from incendiary comments targeting prosecutors and potential witnesses.
He's also charged by Smith's team in Florida with illegally hoarding classified documents, is accused in Fulton County, Georgia, of conspiring to undo his election loss in that state and is awaiting trial in New York on state charges alleging that he falsified business records to cover up hush money payments to a porn actor.