But Trump's lawyers insist that all the steps he took to declare himself the winner of the 2020 presidential election amounted to actions he took on behalf of the nation rather than himself.
“Under our system of separated powers, the judicial branch cannot rule on the president's official actions,” Missouri-based attorney John Sauer and other members of Trump's legal team wrote. “The impeachment against President Trump is illegal and unconstitutional. It should be rejected,” he said.
Trump's argument appears to be an attempt to slow down the case against him, which is pending in the appeals court. His appeal has already forced an abrupt halt to criminal proceedings in the District Court, throwing the March 4 trial date there into doubt.
On Friday, the Supreme Court denied Smith's petition, as Smith urged the courts to urgently consider a serious public interest in resolving the case in 2024, even though he has recused himself from publicly discussing Trump's current campaign for the GOP presidential nomination. The justices must quickly hear the case, leaving the matter to the D.C. Circuit Court of Appeals, where Smith is seeking speed.
Unlike the high court, the three-judge appeals court panel assigned to the case appears to agree with Smith's claims of urgency, setting a Jan. 9 deadline for oral arguments. If the justices — George HW Bush appointee Karen Lecroft Henderson and Biden appointee J. The case will end before a jury next month, ruling in favor of Michelle Childs and Florence Pan-Smith.
In his brief, Trump is seeking to delay returning the case to the district court, which could take up to three months, while the panel considers whether to appeal to a full appeals court bench or the Supreme Court if it rules against him. If Smith wins, he is sure to ask the board to implement its ruling immediately.
Trump's summary of claims should throw out the current case against him entirely, with his lawyers arguing that former presidents can be criminally prosecuted for their official actions in a situation unprecedented in American history: when a president is impeached and convicted by the Senate. .
“Before any lawyer can ask a court to sit in judgment of the president's conduct, Congress must have authorized it by impeaching and impeaching the president. That did not happen here, so President Trump has absolute immunity,” Trump's lawyers wrote.
Trump's brief draws heavily on debates among founders about the need to protect presidents' official actions from judicial review. This, they argued, has resulted in an unbroken history in which no president has been impeached for conduct related to their official duties. Allowing the case against Trump to go forward, they argued, would lead to a cycle of revenge and retribution against future presidents.
The former president commented on the case on Truth Social on Sunday, backing away from his usual claim that the 2020 election was somehow stolen from him.
“I did my duty as President to expose and investigate the rigged and stolen election. It is my duty to do so, and the evidence available is overwhelming and indisputable,” he wrote.
An obvious stumbling block to the Trump camp's arguments is President Gerald Ford's controversial Watergate apology to former President Richard Nixon. Since Nixon was never formally impeached or convicted, a pardon would not have been necessary under Trump's theory.
But Trump's lawyers say the unusual act of clemency still bolsters their case.
“President Ford's pardon to prevent the former president's bitter, protracted, divisive prosecution … reinforces — not undermines — the political and constitutional tradition against impeachment of presidents,” they wrote.
Sutgen has scheduled a federal hearing on Trump's election for March 4, raising doubts that the immunity question will drag on much longer. If the appeals court rules in Trump's favor, the case will be thrown out. If the justices rule in favor of the government, a trial can proceed, but further delays are likely as the losing side faces a review by a full bench of the appeals court and then the Supreme Court.
Whenever Sudhakan returns a case, she must determine whether the original trial date is viable (it has already passed) or whether a new date is necessary. Assuming Trump retains his lead in the GOP primary and becomes the GOP presidential nominee, a test that runs deep into 2024 will become more complicated as the general election nears.
Another potential complication: Trump is scheduled to go on trial in Florida on May 20 on a second indictment brought by Smith, who accuses him of refusing to return a raft of classified documents to his Mar-a-Lago estate after he left office. But U.S. District Court Judge Eileen Cannon is likely to delay the trial's start date as she considers the discovery issues in the case at length. Cannon's final decision, which isn't expected until March, could be a wild card for Sutcon to set a new trial date.
