Donald Trump has asked an appeals court in Washington DC to throw out charges that he sought to subvert the 2020 election, in the latest of a series of high-stakes legal maneuvers between the former president’s lawyers and the US department of justice.
In a filing late on Saturday lawyers for Trump argued to the DC circuit court of appeals that he is legally cloaked from liability for actions he took while serving as president.
The move came a day after the US supreme court declined to expedite a request by the special counsel Jack Smith to consider the question of presidential immunity from prosecution.
The latest filing is an incremental advance on the long-running legal duels between Trump and the special counsel, who may not now be able to bring the election interference complaint, one of four separate criminal cases against Trump, before a jury ahead of the next year’s election.
If the election interference case is delayed, and Trump wins the election as current polls suggest he could, the former president could simply order all federal charges against him to be dropped.
In Saturday’s 55-page brief to the appeals court, Trump’s lawyer D John Sauer argued in essence that under the US constitution one branch of government cannot assert judgment over another.
“Under our system of separated powers, the judicial branch cannot sit in judgment over a president’s official acts,” Sauer wrote. “That doctrine is not controversial,” he added.
The filing repeats what Trump’s lawyers have consistently said: that he was acting in an official capacity to ensure election integrity, and therefore under immunity because presidents cannot be criminally prosecuted for “official acts”.
Under the constitution, only the Senate can impeach and convict a president – and that effort failed.
In the filing, Sauer argued that executive immunity must exist because no president or former president has previously been charged with a crime.
“The unbroken tradition of not exercising the supposed 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,” he wrote.
He also said that Tanya Chutkan, the judge due to hear case against Trump, was mistaken in her interpretation of limited presidential immunity when she wrote that Trump should still be “subject to federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office”.
The interplay of legislative, executive and judicial power now lie at the center of the 2024 election. Last week, Colorado’s supreme court ruled that Trump was ineligible to be on the ballot in that state because of his alleged actions to resist certification of the popular vote in 2020.
But the implementation of the ruling was delayed until next month when the US supreme court may look at it.
On Saturday evening, before heading to Camp David for the holiday break, Joe Biden said he “can’t think of one” reason presidents should receive absolute immunity from prosecution, as the Republican frontrunner Donald Trump has claimed.
