Former President Donald Trump has filed a motion to dismiss special counsel Jack Smith's election interference case against him – but not so fast, write legal experts Norm Eisen and Josh Kolb for Slate.
His legal argument is deeply flawed and unlikely to work, they wrote.
Trump is essentially arguing that he is immune from prosecution for actions he carried out in his capacity as president, an effort some observers have said he will try to take all the way to the Supreme Court and that could also affect Fulton County District Attorney Fani Willis' state-level prosecution.
In effect, wrote Eisen and Kolb, "Trump argues that the conduct underlying the charges in special counsel Jack Smith’s indictment falls within the 'outer perimeter' of Trump’s official responsibilities as president. But this is the standard for civil immunity for presidents; although Trump’s lawyers try to apply this standard, courts have never even established that presidents enjoy any immunity from criminal prosecutions. Indeed, a close reading of that case suggests that five of the nine justices on the court thought that it did not."
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But even if courts stipulate that presidents have criminal immunity as well as civil immunity, there's another problem – the conduct he's being charged with doesn't really qualify as official responsibilities.
"To deal with this problem, in their motion Trump’s lawyers go to great lengths to rebrand the conduct alleged in the indictment with a series of innocuous-seeming descriptions," noted Eisen and Kolb, including phrases like “communicated with senior Department of Justice officials about investigating election fraud and about choosing the leadership of DOJ.” However, this is "unpersuasive at best and dishonest at worst," as Trump threatening the Georgia secretary of state can't reasonably be construed as an official duty.
U.S. District Judge Tanya Chutkan, whom Trump recently tried unsuccessfully to force to recuse herself, "is likely to reject the motion, and the appellate courts will probably uphold that decision," they concluded. "The facts and the law are clear — Trump’s efforts to overturn the results of an election he knew he lost do not fall within the outer perimeter of his official responsibilities as president. Not even close."
