Log in

Trump Federal Election Case The Latest The Indictment The Judge The Jury Pool The Co-Conspirators Trump Investigations Tracker

Prosecutors Ask Appeals Court to

Reject Trump’s Immunity Claims in
Election Case
The filing by the special counsel, Jack Smith, was the latest move
in an ongoing battle over whether former presidents can be
criminally liable for things they did while in office.

Share full article

Subscribe to The New York Times. Subscribe

Help Times journalists uncover the next big story. Subscribe Now
Subscribe to The New York Times.

Jack Smith, the special counsel, had asked the Supreme Court to step in front of the
appeals court to consider the question of the former president’s immunity. His request
was declined. Doug Mills/The New York Times

By Alan Feuer

Dec. 30, 2023 Updated 3:50 p.m. ET

Federal prosecutors asked an appeals court on Saturday to reject

former President Donald J. Trump’s claims that he is immune from
criminal charges of plotting to overturn the 2020 election and said
the indictment should remain in place even though it arose from
actions he took while in the White House.

The government’s filing to the U.S. Court of Appeals for the District
of Columbia Circuit was part of an ongoing struggle between Mr.
Trump’s lawyers and prosecutors in the office of the special
counsel, Jack Smith, over whether former presidents can be
criminally liable for things they did in office.

The fight over immunity is arguably the most important aspect of

the election interference case, involving both new questions of law
and consequential issues of timing. The case is set to go to trial in
Federal District Court in Washington in early March but has been
put on hold until Mr. Trump’s attempts to dismiss the charges on
grounds of immunity are resolved.

The appeal is legally significant because it centers on a question

that has never before been asked or fully answered. That is
because Mr. Trump is the first former president to have been
charged with crimes and because he has chosen to defend himself
in this case with a novel claim: that the office he held at the time
should shield him entirely from prosecution.

But the fight has revolved around more than the technical issue of
whether the indictment should survive and Mr. Trump should
eventually stand trial. The defense and prosecution have been
waging a separate, but no less critical, battle about when the trial
will happen — specifically about whether it will take place before
or after the 2024 election. If the trial is held after the election and
Mr. Trump wins, he would have the power to order the charges he
is facing to be dropped.

Takeaways From Trump’s Indictment in the 2020 Election Inquiry

Four charges for the former president. Former President Donald Trump was
charged with four counts in connection with his widespread efforts to
overturn the 2020 election. The indictment was filed by the special counsel
Jack Smith in Federal District Court in Washington. Here are some key
takeaways:

Editors’ Picks

How to Create a
In their 82-page filing to the appeals court, prosecutors focused on Black Hole Out of
Thin Air
legal arguments and said that nothing in the Constitution or the
country’s other founding documents supported the idea that a
boygenius Is Having
former president should not be subject to federal criminal law. All the Fun

“The presidency plays a vital role in our constitutional system, but

so does the principle of accountability for criminal acts — The Fine Art of the
Paperback
particularly those that strike at the heart of the democratic Makeover
process,” wrote James I. Pearce, one of Mr. Smith’s deputies.
“Rather than vindicating our constitutional framework, the
defendant’s sweeping immunity claim threatens to license
presidents to commit crimes to remain in office. The founders did
not intend and would never have countenanced such a result.”

When Mr. Trump’s lawyers filed their appellate brief last week ,
they argued, among other things, that if absolute immunity was
denied in this case, future presidents would have to fear facing
criminal charges for an array of acts they undertook in office —
including firing cabinet members or using lethal force overseas.

But Mr. Pearce scoffed at that argument, telling the appeals court
that if presidents faced the possibility of being prosecuted for
crimes committed in office, it could have “a salutary, not a chilling,
effect” on their behavior. He also pointed out, as Mr. Trump’s own
cases have shown, that it is not easy to indict a former president
given that “rigorous standards” must be met before defendants are
charged, let alone convicted.

Moreover, Mr. Pearce said, Mr. Trump’s argument had “sobering”

implications. Under such a broad theory of immunity, he wrote, a
president who took bribes or who instructed the F.B.I. to plant
incriminating evidence on a political enemy would also be immune
from criminal prosecution.

There should be no immunity, Mr. Pearce told the appeals court, for
the accusations Mr. Trump is facing — that he sought to stay in
power despite the will of the voters.

“A scheme to thwart the peaceful transfer of power contradicts the

most basic constitutional check on executive abuses,” he wrote. “A
president comes to power by winning an election, not by
subverting the results of the vote.”

Judge Tanya S. Chutkan, who has been handling the case since it
was filed this summer, rejected Mr. Trump’s immunity claims in
early December. In her decision, she acknowledged that the Justice
Department has long pursued a policy of not indicting presidents
while they are in office but said that as Mr. Trump was no longer in
the White House, he should face prosecution.

A Guide to the Various Trump Investigations

Confused about the inquiries and legal cases involving former President
Donald Trump? We’re here to help.

Key Cases and Inquiries: The former president faces several

investigations at both the state and the federal levels, into matters related
to his business and political careers. Here is a close look at each .

Case Tracker: Trump is at the center of four criminal investigations. Keep

track of the developments in each here .

What if Trump Is Convicted?: Will any of the proceedings hinder Trump’s

2024 presidential campaign? Can a convicted felon even run for office?
Here is what we know, and what we don’t know .

Receive a Weekly Update: Sign up for the Trump on Trial newsletter to get
the latest news and analysis on the cases in New York, Florida, Georgia
and Washington, D.C.

“Whatever immunities a sitting president may enjoy, the United

States has only one chief executive at a time, and that position does
not confer a lifelong ‘get-out-of-jail-free’ pass,” she wrote. “Former
presidents enjoy no special conditions on their federal criminal
liability.”

Mr. Trump appealed the decision to the first court above Judge
Chutkan’s — the court now hearing the case.

But fearing that a protracted challenge could delay the case from
going to trial as scheduled, Mr. Smith made an unusual request to
the Supreme Court : He asked the justices to step in front of the
appeals court and consider the case first, to speed up the process
and preserve the current trial date.

The Supreme Court turned down Mr. Smith’s request last week,
sending the case back to the appeals court.

A three-judge panel of that court is now considering the question of

immunity on a highly accelerated schedule. All written briefs in the
case are set to be filed by Tuesday. Oral arguments have been
scheduled for Jan. 9.

Alan Feuer covers extremism and political violence for The Times, focusing on the
criminal cases involving the Jan. 6 attack on the Capitol and against former President
Donald J. Trump. More about Alan Feuer

Share full article

Our Coverage of the Capitol Riot and its Fallout

T he Events on Jan. 6
Timeline: On Jan. 6, 2021, a mob of supporters of President Donald Trump raided
the U.S. Capitol . Here is a close look at how the attack unfolded .

A Day of Rage: Using thousands of videos and police radio communications, a

New York Times investigation reconstructed in detail what happened — and why .

Lost Lives: A bipartisan Senate report found that at least seven people died in
connection with the attack.
Jan. 6 Attendees: To many of those who attended the Trump rally but never
breached the Capitol, Jan. 6 wasn’t a dark day for the nation. It was a new start .

The Federal Case Against Donald Trump

The Indictment: Former President Donald Trump was indicted on Aug. 1 after a
sprawling federal investigation into his attempts to cling to power after losing the
2020 election. Here is how the indictment was structured .

The Trial: Trump vowed to appeal the decision by the judge presiding over the
case to schedule the start of his trial on March 4 . Legal experts say he can’t
disrupt the trial that way — but there is a longer-shot possibility .

Trump’s Immunity Claim: The Supreme Court’s decision not to fast-

consideration of Trump’s claim that he is immune from prosecution has
given a boost to the former president’s legal strategy of delaying the
proceedings as much as possible in the hopes of running out the clock before
Election Day.
Gag Order: A federal appeals court upheld a gag order that was imposed on
Trump in the case but narrowed its terms, allowing him to keep attacking Jack
Smith, the special counsel.

More In Politics Trending in The Times

Chick-fil-A’s Closed-on-Sunday Policy

Prompts a Highway Rest Stop Revolt

Stream These 9 Movies Before They

Leave Netflix in January

Kenny Holston/The New York Times Emily Elconin for The New York Times Darron Cummings/Associated Press Now May Be the Time to Lock In High
Trump Assails Congresswoman in Mutiny Erupts in a Michigan G.O.P. Michael Flynn’s Rhode Island Hall Interest Rates on Your Savings
His Latest Escalation on Social Overtaken by Chaos of Fame Inclusion Prompts
Media Resignations Storms and High Waves Pummel
California Coast for a Third Day

Paula Abdul Accuses Nigel Lythgoe of

Sexual Assault During ‘American Idol’

They Sold Everything to Go on a 3-Year

Cruise. How It All Unraveled.
Jordan Gale for The New York Times Rachel Mummey for The New York Times Jon Cherry for The New York Times

Young Iowa Republicans Raise Biden’s Christian ‘Persecution’? We The Covenant Parents Aren’t Going ‘Almost Naked’ Party in Moscow Angers
Their Voices. Will Their Party Assess Trump’s Recent Claims. to Keep Quiet on Guns
Russian Conservatives
Listen?
Biden Begins Weeklong Vacation in
Caribbean to Ring in the New Year
Editors’ Picks

Five Action Movies to Stream Now

University Chancellor Fired After

Making Pornographic Videos With His
Wife

Brian Rea Agence France-Presse — Getty Images Luke Fontana

The Secret Sorrow of Hotel Rooms A Statue’s Hips Don’t Lie: Shakira Is Book Review
Honored in Her Hometown Omid Scobie’s ‘Endgame’ Heralds
the Start of a New Era

Go to Home Page »

news Opinion Arts Living More Subscribe

Home Page Today's Opinion Today's Arts Automotive Reader Center Home Delivery
World Columnists Art & Design Games The Athletic Digital Subscriptions
Coronavirus Editorials Books Education Wirecutter
Games
U.S. Guest Essays Best Sellers Book List Food Cooking
Politics Letters Dance Health Headway Cooking
New York Sunday Opinion Movies Jobs Live Events Email Newsletters
Business Opinion Video Music Love The Learning Network Corporate Subscriptions
Tech Pop Culture Magazine Podcasts Education Rate

Science Television Parenting Video

Mobile Applications
Sports Theater Real Estate Graphics Replica Edition
Wildfire Tracker Video: Arts Style TimesMachine International
Obituaries T Magazine Times Store Canada
Today's Paper Travel Manage My Account Español
Corrections Gift Articles 中文网
Trending NYTLicensing

© 2023 The New York Times Company NYTCo Contact Us Accessibility Work with us Advertise T Brand Studio Your Ad Choices Privacy Policy Terms of Service Terms of Sale Site Map Help Subscriptions