Trump's lawyers ask appeals court to rule on immunity in late-night filing

Former President Donald Trump's legal team has asked a federal appeals court to toss the criminal case alleging he violated multiple criminal statutes in his attempts to overturn the results of the 2020 presidential election, arguing that Trump possesses "presidential immunity." 

In a 71-page late-night filing with the U.S. Court of Appeals for the District of Columbia Circuit, Trump's attorneys requested a stay of any order by the court if it disagrees with him and his claims of presidential immunity, so that Trump can try to make his case to the Supreme Court instead. 

Trump's attorneys argue the actions that Trump allegedly took, according to federal prosecutors, "constitute quintessential presidential acts" and "fell within his "official duties." 

"During the 234 years from 1789 to 2023, no current or former president had ever been criminally prosecuted for official acts. That unbroken tradition died this year, and the historical fallout is tremendous," the Trump filing reads. "The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our nation for many decades to come and stands likely to shatter the very bedrock of our republic—the confidence of American citizens in an independent judicial system."

In the Saturday night filing, Trump's legal team insisted his criminal case should be dismissed because he wasn't convicted by the Senate in his second impeachment trial in 2021, claiming that would violate his protections against double jeopardy. Impeachment is a political process, not a criminal one, according to the U.S. Constitution. 

The latest Trump filing comes one day after the Supreme Court declined to fast-track the landmark case determining whether Trump is absolutely immune from prosecution for any crimes he allegedly committed while in the Oval Office. The Supreme Court's decision not to immediately take up the case allows the U.S. Court of Appeals for the District of Columbia to first determine whether Trump can be prosecuted for his alleged efforts to alter the outcome of the 2020 presidential election. 

The Supreme Court is still likely to take up the question, but not imminently. The Supreme Court's decision to not weigh in for now was a blow to special counsel Jack Smith and his prosecution team.  

Trump first filed a motion to dismiss the indictment on grounds of "presidential immunity" on Oct. 5. 

• Federal judge warns of Jan. 6 case backlog as Supreme Court weighs key obstruction statute 

Trump has pleaded not guilty to felony charges accusing him of trying to overturn the 2020 election results. Those charges include conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. 

The 2020 election trial is set to begin March 4. 

In:
• Donald Trump
• Indictment

Scott MacFarlane

Scott MacFarlane is a congressional correspondent. He has covered Washington for two decades, earning 20 Emmy and Edward R. Murrow awards. His reporting resulted directly in the passage of five new laws.

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