Lawyers for Donald Trump have urged a federal judge to dismiss the criminal case over his efforts to overturn the 2020 election results, advancing a sweeping interpretation of executive power that contends that former presidents could not be held accountable for actions undertaken while in office.
The request to throw out the indictment, handed up earlier this year by a federal grand jury in Washington, amounts to the most consequential court filing in the case to date and is almost certain to precipitate a legal battle that could end up before the US supreme court.
In their 52-page submission to the presiding US district judge, Tanya Chutkan, Trump’s lawyers essentially argued that Trump enjoyed absolute immunity from criminal prosecution because the charged conduct fell within the so-called “outer perimeter” of his duties as president.
The filing contended that all of Trump’s attempts to reverse his 2020 election defeat in the indictment, from pressuring his vice-president, Mike Pence, to stop the congressional certification to organizing fake slates of electors, were in his capacity as president and therefore protected.
Whether Trump’s motion to dismiss succeeds remains uncertain: it raises novel legal issues, such as whether the outer perimeter test applies to criminal cases, and whether Trump’s charged conduct even falls within a president’s duties.
Prosecutors in the office of the special counsel, Jack Smith, could counter that Trump cannot make either argument. The outer perimeter test is widely seen as applying to only civil cases, for instance, and Trump is alleged as having acted not in his capacity as a president, but as a candidate.
The Trump lawyers repeatedly suggested that the outer perimeter test – used by the supreme court in Nixon v Fitzgerald (1982) in which the justices found that presidents have absolute immunity from damages liability for acts related to their presidential duties – should apply to criminal cases.
“To hold otherwise would be to allow the President’s political opponents to usurp his or her constitutional role, fundamentally impairing our system of government,” wrote Trump’s lawyers Todd Blanche, John Lauro and Gregory Singer.
But Trump faces an uphill struggle, given a federal judge in Washington last year ruled in a separate civil suit against Trump that not everything he did as president was covered by presidential immunity. That case, Blassingame v Trump, is now under appeal at the DC circuit.
At the heart of the Trump legal team’s filing was the extraordinary contention that not only was Trump entitled to absolute presidential immunity, but the immunity applied regardless of Trump’s intent in engaging in the conduct described in the indictment.
“An allegedly improper purpose for an official act does not rob the act of its official character,” Trump’s lawyers wrote. “A president’s purpose or motive is once again irrelevant to whether his acts fall under the outer perimeter of his responsibilities.”
Trump’s lawyers argued that his attempts to seek investigations into supposed election fraud were protected because, as the head of the executive branch, he had an obligation to “take care” to enforce federal election laws through his tweets and directions to the justice department.
The Trump lawyers also claimed that all of the conduct in the indictment was protected, notably including the fake electors plot, since it was related to him trying to get Pence to act in a “certain way” on 6 January 2021 – though omitting that “way” was to unlawfully stop the certification.
Trump’s latest filing adds to the issues that the judge presiding in the case will have to decide in the coming weeks. Chutkan is scheduled to first hear oral arguments on 16 October about whether to issue a limited gag order against Trump to limit his public attacks against prosecutors.
• This article was amended on 6 October 2023 to correct the year in which the Capitol attack occurred; an earlier version said it was in 2023.
