Lawyers for former President Donald Trump have asked a federal appeals court to throw out a case alleging interference in the 2020 election, arguing that he is immune from prosecution.
“Under our system of separated powers, the Judicial Branch cannot sit in judgment over a President’s official acts,” they wrote in a brief filed Saturday night with the U.S. Court of Appeals for the District of Columbia.
The move came a day after the U.S. Supreme Court declined to fast track a dispute over Trump’s immunity from prosecution.
Special counsel Jack Smith made that plea for urgency in a bid to keep his criminal case against Trump on track for trial starting March 4. The election interference case is on hold while the question over immunity plays out. The D.C. appeals court has agreed to work quickly, and oral arguments are scheduled for Jan. 9.
In their brief, Trump’s lawyers argue that no current or former president may be criminally prosecuted for “official acts” unless they have been impeached and convicted by the Senate. Since that did not happen to Trump, they write, he has “absolute immunity.”
They also call the indictment “unlawful and unconstitutional” and warn that it “threatens to launch cycles of recrimination and politically motivated prosecution that will plague our Nation for many decades to come.”
Special counsel Smith has alleged that Trump went well beyond official duties as he waged a months long campaign to overturn the 2020 election results, falsely asserting that the vote had been stolen. His legal team pursued dozens of lawsuits in states where Trump lost, and courts repeatedly rejected the claims of election fraud.
At stake in the arguments over immunity is not only whether Smith’s criminal case proceeds, but also — if it does — how far into election season it may be pushed.
Trump would be required to appear in court during arguments, which would limit his election appearances. That could also offer grist for his contention that the case is politically motivated. If the trial were delayed until after November’s vote, and if Trump won, he would be able to have the charges against him dropped.
In all, Trump faces 91 criminal charges in four different cases, and his legal team has sought to delay all of them until after the election.
The Saturday filing asks that if the appeals court rules against the former president, that it holds off on implementing that decision while Trump considers requesting a review from the full appeals court or the Supreme Court.
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