Trump tells Supreme Court criminal prosecution is a `mortal threat' to the presidency
Maureen GroppeWASHINGTON − Former President Donald Trump on Tuesday asked the Supreme Court to dismiss his indictment on federal charges he tried to steal the 2020 election, arguing criminal prosecution presents a “mortal threat” to the independence of the presidency.
“The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” Trump’s lawyers told the court.
That would lead to “years of post-office trauma at the hands of political opponents,” they wrote.
The high court will hear oral arguments next month in Trump’s appeal of a lower court’s decision that he’s not immune from prosecution.
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Was Trump's request to 'find' 11,780 votes in Georgia personal or official?
Even if Trump loses that appeal, the Supreme Court may not reach a decision quickly enough for a trial to proceed in time for a verdict before the November election.
In his legal filing Tuesday, Trump − the presumptive GOP 2024 nominee for president − offered the court steps it could take which would further delay a trial.
For example, if the justices decide that immunity for acts taken while in office require a fact-based approach – such as whether Trump was acting in his official or personal capacity during his allegedly criminal acts − then they should send the case back to the lower courts to make that determination, “including conducting any fact-finding necessary to the determination prior to any further proceedings in the case,” his lawyers wrote.
Trump would have to convince a court that his bid to use fake electors and a high-pressure phone call where he pressed the Georgia secretary of state to “find” 11,780 votes were part of his official duties as president. But whatever the appeals court ruled, the exercise would still delay his trial in the federal election case.
Reelection could wipe away Trump's federal indictments
Trump has repeatedly claimed that the charges are politically motivated. If he returns to the White House, he could appoint an attorney general who would seek to dismiss any pending federal charges. Trump could also simply pardon himself, although his power to do so is debated.
But Trump’s preferred outcome is for the Supreme Court to entirely dismiss the indictment, an outcome experts say is unlikely.
While former presidents have broad immunity from civil lawsuits for official actions taken while serving in the White House, Trump has attempted to claim sweeping immunity from criminal prosecution.
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Trump has pleaded not guilty to four federal charges in the case before the Supreme Court − three for conspiracy and one for obstruction − for falsely claiming election fraud and trying to overturn the legitimate election results.
His lawyer, John Sauer, argued at the D.C. Circuit Court of Appeals in January that former presidents are only vulnerable to criminal charges after the House has impeached and the Senate convicted a president. Sauer said in response to a judge’s questions that a president could kill a political opponent and get away with it if the Senate didn’t convict him.
Prosecutors have countered that could lead to some presidents escaping the law, if they’re not convicted by the Senate or if their crimes are concealed until they’re out of office.
Sauer argued in Tuesday’s filing that “even if some level of Presidential malfeasance, not present in this case at all, were to escape punishment, that risk is inherent in the Constitution’s design.”
“The founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases,” he wrote. “They were unwilling to burn the Presidency itself to the ground to get at every single alleged malefactor.”
Special Counsel Jack Smith's response to Trump's brief is due April 8.
The trial on Smith's charges against Trump was originally scheduled for March. The appeals panel kept it on hold while Trump asked the Supreme Court to weigh in.
Trump could also be tried in New York on charges he falsified business records to cover up payments to women.
Trials are also possible on election interferences charges in Georgia and on whether Trump mishandled classified documents after leaving the White House.