Special counsel says Trump isn’t entitled to immunity in 2020 election case as former president seeks dismissal

Special counsel Jack Smith on Thursday struck back at Donald Trump’s attempt to dismiss his federal election interference case based on “presidential immunity,” saying no such protection from criminal liability exists for former presidents.

Trump, Smith wrote, is trying to put himself on Mt. Rushmore.

“In staking his claim, he purports to draw a parallel between his fraudulent efforts to overturn the results of an election that he lost and the likes of Abraham Lincoln’s Gettysburg Address and George Washington’s Farewell Address. These things are not alike,” the special counsel wrote Thursday.

Trump is asking US District Judge Tanya Chutkan to dismiss the criminal charges against him, arguing he has immunity because he was president at the time of the conduct in question and also was acquitted by the US Senate after his 2021 impeachment.

Prosecutors allege that Trump, along with several of his lawyers and advisers, tried to implement a plot to appoint fake slates of electors and spread misinformation about voting security, all of which ultimately led to the violence at the US Capitol on January 6, 2021. Trump has pleaded not guilty and a trial is scheduled for early March.

Courts have previously held presidents can be immune from civil liability for their actions while in office, but novel legal questions about whether that extends to criminal prosecutions remain unsettled.

Thursday, the special counsel said there’s no hint of post-presidential immunity.

“No court has ever alluded to the existence of absolute criminal immunity for former presidents, and legal principles, historical evidence, and policy rationales demonstrate that once out of office, a former president is subject to federal criminal prosecution like other citizens,” the filing states.

Smith recognizes that presidents – while in the White House – have “two forms of immunity designed to afford protections to the discharge of his wide-ranging duties.”

But protection from criminal prosecution, the special counsel argues, vanishes when he leaves office.

“Neither the temporary immunity from criminal liability that an incumbent president enjoys while in office nor the absolute immunity that current and former presidents enjoy from civil liability for their official conduct as president … suggests the existence of an unprecedented form of absolute immunity from criminal liability. To the contrary, the existence of both immunities is premised on the availability of criminal liability once a former president is out of office.”