Donald Trump's legal argument that he can't be charged in the D.C. elections criminal case because he was president at the time doesn't hold water, according to Republicans who served in five different GOP administrations.
Trump recently filed a motion to dismiss in the election subversion case, which is being prosecuted by special counsel Jack Smith and overseen by Judge Tanya Chutkan. In his motion, the former president argued that he has presidential immunity protecting him from prosecution—essentially saying he can't be touched for anything.
Former federal prosecutors argued that Trump's filing was aimed at conservative Supreme Court attorneys, and that it was essentially a bid to turn "U.S. presidents into kings."
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Now, a group of Republican former officials is arguing for the first time that this defense will not work for Trump. The effort took the form of a brief filed in the D.C. case.
"The absolute immunity claimed by former President Trump would immunize and thereby encourage future first-term Presidents who lose re-election to attempt to violate the Executive Vesting Clause by knowingly usurping a second term and preventing their elected successors from commencing their exercise of the executive power," the brief states. "Such immunity itself would pose 'the dangers of intrusion on the authority and functions of the Executive Branch.'"
Former Mike Pence adviser and conservative judge Michael Luttig, who has previously argued that the 14th Amendment should bar the former president from office, said definitively that "the former president is not entitled to absolute immunity from prosecution for his alleged crimes."
That's because, according to Luttig, "in attempting to overturn the presidential election that he knew he had lost, he violated the Executive Vesting Clause of Article II, Section 1, Clause 1 of the Constitution."
"To our knowledge, this is the first brief ever to make this constitutional argument against absolute immunity from criminal prosecution for a president," Luttig added on Saturday.
