Trump seeks to dismiss Georgia election interference case based on presidential immunity

Trump is making the same argument in his federal election interference case.

January 8, 2024, 12:44 PM

Former President Donald Trump's legal team on Monday filed multiple new motions in Georgia seeking to dismiss the Fulton County election interference case against him on grounds that include presidential immunity, which they say "shields him from criminal prosecution."

The new motions come as Trump continues his legal battle over his presidential immunity claims in his federal election interference case in Washington, D.C., where he is expected to be in attendance Tuesday when the D.C. Court of Appeals hears arguments in that case.

"Historical practice over 234 years confirms that the power to indict a current or former President for official acts does not exist," Trump's team wrote in its 67-page motion filed in Georgia Monday,

"The indictment in this case charges President Trump for acts that lie at the heart of his official responsibilities as President," the motion said. "The indictment is barred by presidential immunity and should be dismissed with prejudice."

Among those official responsibilities, the filing argues, were Trump's efforts to have then-Vice President Mike Pence reject the results of the election on Jan. 6, 2021, and his efforts to organize slates of so-called "alternate" electors.

"Urging the Vice president and Member of Congress to exercise their official responsibilities consistent with the President's view of the public good is authorized by the Constitution and lies at the heart of the President's constitutional and historic role," the filing says.

"Organizing slates of electors in furtherance of that effort to have Congress exercise its responsibilities falls within the President's official duties as well," it argues.

Former President and Republican presidential candidate Donald Trump campaigns, in Clinton, Iowa, Jan 6, 2024.
Cheney Orr/Reuters

The immunity motion also seeks to dismiss the indictment based on the supremacy clause, arguing that the state is barred from interfering with the functioning of the federal government.

"The Supreme Court has held that states cannot use their criminal law to interfere with actions that are inseparably connected to the functioning of the national government," the motion says. "There can be no doubt that the election of the President of the United States is so connected to the function of the national government."

Trump and 18 others pleaded not guilty in August to all charges in a sweeping racketeering indictment for alleged efforts to overturn the results of the 2020 presidential election in the state of Georgia. Defendants Kenneth Chesebro, Sidney Powell, Jenna Ellis and Scott Hall subsequently took plea deals in exchange for agreeing to testify against other defendants.

The former president has blasted the district attorney's investigation as being politically motivated.

In a second motion filed Monday, Trump's team seeks to dismiss the indictment based on double jeopardy grounds by arguing that Trump's acquittal by the Senate following his 2021 impeachment over the Jan. 6 attack on the Capitol covered "the same course of conduct at issue" as the indictment.

"As the Senate acquitted President Trump, the prosecution may not re-try him in this court," the motion argues.

The double jeopardy motion claims that the articles of impeachment charged Trump with similar conduct to the Fulton County indictment, including that he "repeatedly issued false statements," as well as "prior efforts to subvert and obstruct the certification" of the 2020 election results, including the now-famous phone call to Georgia Secretary of State Brad Raffensperger.

"Because the Constitution specifies that only 'the Party convicted' by trial in the Senate may be 'liable and subject to Indictment, Trial, Judgment and Punishment,' id., it presupposes that a President who is not convicted may not be subject to criminal prosecution," the filing argues.

In their third and final motion filed on Monday, Trump's attorneys seek to dismiss the indictment based on the grounds that Trump's due process rights were violated when he was charged in Georgia, because he "lacked fair notice" that his claims of fraud in the 2020 election "could be criminalized."

"Trump is the first person to face criminal charges for such core political behavior, and he is charged under statutes that facially have nothing to do with his alleged conduct," the filing states. "As a result, President Trump could not possibly have received fair notice that his conduct was allegedly criminal when he performed it, and the indictment must be dismissed for violation of the fair notice requirement of the Due Process Clause."

Specifically, the motion argues that Trump's due process rights have been violated with the statues used in the case, including the racketeering or RICO statue, which is used to charge defendants with conspiring to commit multiple crimes as part of a larger criminal enterprise.

"A person of ordinary intelligence would not understand that the statue could be used to arrest and jail a group of law-abiding citizens," the filing argues.

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