Trump Flips Script in Election Case to Justify Immunity Defense

Trump Flips Script in Election Case to Justify Immunity Defense


When the Supreme Court considers Donald J. Trump’s sweeping claims of executive immunity on Thursday, it will break new legal ground, mulling for the first time the question of whether a former president can avoid being prosecuted for things he did in office.

But in coming up with the argument, Mr. Trump used a tactic on which he has often leaned in his life as a businessman and politician: He flipped the facts on their head in an effort to create a different reality.

At the core of his immunity defense is a claim that seeks to upend the story told by federal prosecutors in an indictment charging him with plotting to overturn the 2020 election. In that indictment, prosecutors described a criminal conspiracy by Mr. Trump to subvert the election results and stay in power.

In Mr. Trump’s telling, however, those same events are official acts that he undertook as president to safeguard the integrity of the race and cannot be subject to prosecution.

In many ways, Mr. Trump’s immunity claim is breathtaking. In one instance, his lawyers went so as far as to say that a president could not be prosecuted even for using the military to assassinate a rival unless he was first impeached.

But the wholesale rewriting of the government’s accusations — which first appeared six months ago in Mr. Trump’s motion to dismiss the election interference case — may be the most audacious part of his defense. It was certainly a requisite step his lawyers had to take to advance the immunity argument.

Other courts have ruled that presidents enjoy limited immunity from civil lawsuits for things they did as part of the formal responsibilities of their job. To extend that legal concept to criminal charges, Mr. Trump’s lawyers needed to reframe all of the allegations lodged against him in the election interference case as officials acts of his presidency rather than as the actions of a candidate misusing his power.

The indictment filed last summer by Jack Smith, the special counsel, detailed how Mr. Trump sought to enlist the Justice Department in validating his claims that widespread fraud had marred the results of the election.

It set out evidence of his pressuring state lawmakers to draft false slates of electors saying he had won in states he actually lost. And it documented how he waged a campaign to persuade his vice president, Mike Pence, to block or delay certification of Joseph R. Biden Jr.’s victory during a proceeding at the Capitol on Jan. 6, 2021.

But Mr. Trump’s lawyers have described all of these actions, which prosecutors claim were crimes, very differently. The lawyers have said they were actions undertaken to “ensure election integrity” that sat “at the heart of” Mr. Trump’s “official responsibilities as president.”

The government pushed back from the outset, saying that such claims amounted to a recasting of the indictment. Prosecutors assailed attempts by the former president’s lawyers to transform what they believe were criminal offenses into examples of presidential duty as a “gross mischaracterization” of the charges they had filed.

If Mr. Trump’s lawyers make similar arguments to the justices on Thursday, they may face an uphill climb.

In December, a conservative appeals court in Atlanta seemed to undercut the idea that Mr. Trump might have been acting in his official role as president when, by his account, he policed voter fraud. The court found that federal officials did not have much of a role to play in standing guard over state-run elections.

That decision came in response to an attempt by Mark Meadows, Mr. Trump’s former chief of staff, to remove state election tampering charges he was facing in Georgia to federal court. The appellate judges, in rejecting Mr. Meadows’ request, wrote that the federal executive branch has only “limited authority to superintend the states’ administration of elections.”

Mr. Trump’s history of creating his own reality extends far beyond the arguments that the court will hear this week.

In the political sphere, for instance, he has embraced a revisionist history of the attack on the Capitol on Jan. 6, 2021, repeatedly describing the rioters who have been charged with storming the building as “hostages” and “political prisoners.” He has also accused, without evidence, President Biden of orchestrating the four criminal cases he is facing when two of them were brought by state or local authorities and the two federal cases were brought by a special counsel, Mr. Smith, operating largely independently of the Justice Department. (Mr. Trump himself has promised, if elected again, to appoint a special prosecutor to “go after” Mr. Biden and his family.)

Last week, Mr. Trump used the debate about immunity to issue what appeared to be a veiled threat against Mr. Biden.

“If they take away my presidential immunity,” he wrote on social media on Friday, “they take away Crooked Joe Biden’s presidential immunity.”

Mr. Trump has also used this flip-the-script strategy in some of his other criminal cases, including the one in Florida where he stands accused of illegally holding on to classified documents after leaving office and obstructing the government’s attempts to get them back.

One of his chief defenses in that case is a claim that he cannot be charged with removing the documents from the White House because he designated them as his personal property under a law known as the Presidential Records Act.

But as legal scholars and prosecutors have pointed out, Mr. Trump’s expansive interpretation of the act inverts its meaning. The law was put in place after the Watergate scandal not to permit former president to lay unfettered claim to records from their time in office, but for the opposite reason: to ensure that most of them — especially those containing highly classified state secrets — remain in the possession of the government.

Still, it is in the context of the immunity defense that Mr. Trump’s most audacious revisions of reality have taken place.

As the issue moved through two lower courts in Washington, his lawyers made a remarkable argument. They claimed that because no president or former president had ever been charged with a crime before Mr. Trump, it could be inferred that there was such a thing as presidential immunity.

Prosecutors quickly disputed this view by pointing out in court papers that the fact that Mr. Trump was the only former president to have been criminally prosecuted did not reflect “a history and tradition implying the existence of criminal immunity, but instead the fact that most presidents have done nothing criminal.”



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