On January 2, Donald Trump’s legal team filed his last official salvo with the Court of Appeals for the D.C. Circuit, continuing to argue that he is entitled to presidential immunity for plotting to overturn the 2020 election.
His ploy for criminal immunity, if not for the seriousness of the matter, would be laughable for its legal flaccidity.
It also appears to run afoul of federal pleading rules, which on appeal are read in conjunction with appellate rules. Trial attorneys who sign pleadings affirm that, after reasonable inquiry under the circumstances, their pleadings are truthful and have a basis in fact as well as law.
Trump’s reply brief, incredibly, questions the results of the 2020 election — three years later, after more than 60 courts already rejected his claims. Relitigating the 2020 election is not beating a dead horse, it’s trying to breathe life into long decayed and necrotic tissue, and certainly appears to mock the requirement of a good faith basis in law.
Ethics canons would like a word
Trump’s brief describes “vigorous disputes and questions about the actual outcome of the 2020 Presidential election — disputes that date back to November 2020, continue to this day in our nation’s political discourse, and are based on extensive information about widespread fraud and irregularities in the 2020 election.”
As proof, Trump outrageously cites an anonymous “2020 election report,” which he posted on Truth Social the same day his reply brief was due, suggesting his pleadings were written more for Fox News and right-wing pundits than the appellate court.
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It's obvious to anyone outside the Fox News bubble that the only reason the 2020 election is stuck “in our nation’s political discourse” is because Trump keeps it there. He repeats the Big Lie to anyone who will listen, ad nauseam. Trump correctly intuits that with enough media coverage, obsessively repeating his lie will make it true, at least for his core cohort of uneducated, credulous or otherwise gullible MAGA voters.
The anonymous and unsigned “report” Trump cites for authority on appeal, titled, “A Summary of Election Fraud in the 2020 Presidential Election in the Swing States,” begins:
It has often been repeated there is “no evidence” of fraud in the 2020 Election. In actuality, there is no evidence Joe Biden won.
Ongoing investigations in the Swing States reveal hundreds of thousands of votes were altered and/or not lawfully cast in the Presidential Election. Joe Biden needed them. On Election Night Nov. 3, 2020, President Donald J. Trump was sailing to reelection with landslide leads…
From here, the anonymous “report” goes on to relitigate the 2020 results in the states of Georgia, Wisconsin, Pennsylvania, Arizona and Michigan.
In most federal circuits, pleading legally debunked propaganda to back-door a legal argument rejected by more than 60 courts would bring swift sanctions, and rightly so.
Bravado before the fall
Oral argument on Trump’s immunity claim is set for January 9. Practicing his bravado on the way to the courthouse, Trump claims that the “ridiculous Deranged Jack Smith case on Immunity” should be thrown out, because “the most respected legal minds in the Country say I am fully entitled” to immunity from criminal prosecution.
He stops short of identifying which respected legal minds support his immunity claims; My Pillow Guy must not be recognized as a legal mind, respected or otherwise.
In reality, aside from fact-challenged MAGA supporters lusting to see Trump stand on Fifth Avenue and shoot, few legal experts agree that presidents have immunity to commit crimes and avoid legal consequences after leaving the White House. On the contrary, most prosecutors, judges and amici briefs filed on appeal find Trump’s criminal immunity claims both preposterous and dangerous.
Bootstrapping a defense won’t make it legit
Trump has declared, “Of course I am entitled to Presidential Immunity… I was President, it was my right and duty to expose and further investigate a Rigged and Stolen election.”
When he lost, Trump didn’t just attempt to “expose” or “investigate” the election.
Accepting the facts in the indictment as true, as is required at this phase of the case, Trump loyalists at the Justice Department sent an official letter to targeted state officials. They claimed the Justice Department had found significant, outcome-changing problems with the 2020 election, even though the DOJ had made no such finding.
The House January 6th Select Committee addressed this letter in its final report, explaining specifically how Trump “was informed over and over again, by his senior appointees, campaign experts and those who had served him for years, that his election fraud allegations were nonsense.”
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Trump simultaneously used the office of the presidency to pressure state elections officials to “find votes” and switch electoral votes for Biden to votes for himself.
He supported fraudulent slates of electors from seven targeted states.
He then assembled a mob outside the U.S. Capitol during Congress’ electoral vote certification, and because Vice President Mike Pence refused to recognize Trump’s fake electors, Trump directed the mob to “fight like hell” to pressure Pence to do something he had no constitutional authority to do.
Trump did this while continuing to incite rioters with false claims that their votes had been “stolen.”
Separation of powers expects prosecution
It’s one thing to rally supporters with false claims that their votes were stolen. It’s quite another to attempt to hoodwink the judiciary into limiting its own judicial province.
Trump claims on appeal that the judiciary’s exercise of control over him based on acts taken while he was president would invade the executive branch’s authority and violate the separation of powers.
Under the constitutional concept of checks and balances, the opposite is true. Making presidents (or any federal official) immune from criminal prosecution would degrade the judicial branch’s constitutional mandate to “check” an executive who exceeds his lawful authority.
In 1974, in the Nixon case, the Supreme Court held that an unqualified executive privilege would interfere with the primary constitutional duty of the judicial branch to do justice in criminal prosecutions, and “plainly conflict with the function of the courts under Art. III.” In a separate case, the high court specifically rejected the argument that the performance of official duties requires “the immunization of otherwise criminal deprivations of constitutional rights.”
Trump argues that immunity is necessary to avoid chilling a president’s capacity to “deal fearlessly and impartially with the duties of his office,” quoting Fitzgerald.
But Fitzgerald only rejected private civil suits against a former president for official acts. This makes sense: Imagine, for example, how many wrongful death civil suits could arise from a single military deployment. Rejecting civil liability for certain official acts, Fitzgerald found that jurisdiction was still warranted in criminal prosecutions. Given that Trump is facing four separate felony cases involving 91 total charges, it’s no mystery why he seeks to misrepresent Fitzgerald to include criminal immunity.
As an amicus brief submitted on appeal by former Republican officials and constitutional lawyers points out, “the possibility that the President might be chilled in his executive functions by threat of later criminal sanction is baked into the Constitution itself. The President is always at risk of impeachment for ‘high Crimes and Misdemeanors,’ and always at risk of criminal prosecution.”
Team Trump continues to lie about American history
Trump insists that the lack of prior, similar cases to his own proves that presidents are immune from criminal prosecution when they break the law.
His brief argues: “The 234-year unbroken tradition of not prosecuting Presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence” that presidents are immune from prosecution.
As examples, he cites President Ronald Reagan’s involvement in Iran-Contra, President Bill Clinton’s pardon of Marc Rich, Bush’s claims of “weapons of mass destruction” and Nixon’s firing of Archibald Cox, none of which led to criminal prosecution.
At the risk of stating the obvious, none of these acts were crimes. And while all of them can fairly be criticized, each act was undertaken pursuant to obvious and unquestioned powers of the presidency.
In contrast, Trump is charged in part with conspiracy to defraud the government and obstruction in his attempt to stop the peaceful transfer of power, both crimes. And trying to change the outcome of a federal election is certainly not a recognized power of the presidency. As the Bipartisan Policy Center explains, the Constitution gives states responsibility for elections, and reserves a role for Congress, not the president. Trump claims it was his “duty” to “investigate” a “fraudulent” election, but by constitutional design, presidents have no direct role in conducting, investigating or overseeing federal elections, and adjudicating those complaints is reserved solely to the judiciary, not the executive.
Only a strongman thinks he is above the law
More grievous than any shady legal strategy is Trump’s underlying message that presidents are free to commit crimes while in office.
The nascent Supreme Court determined in Marbury v. Madison that, “The government of the United States has been emphatically termed a government of laws, and not of men.”
Trump’s legal team cites no constitutional language to the contrary, because there is no presidential immunity language in the Constitution whatsoever. The Supreme Court held in 1882 that, “All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government …”
A century earlier, President George Washington counseled his beloved and vulnerable nation in his farewell address that, “The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey the established government.”
He warned that a future usurper like Trump would try to channel his efforts through obstruction of official proceedings: “All obstructions to the execution of the laws, including group arrangements to ‘counteract’ the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle.”
Washington foreshadowed our contemporary political crisis, as if he saw, through a crystal ball, Trump’s proclaimed presidential immunity, his national gaslighting campaign to delegitimize the courts, and his J6 mob attacking the U.S. Capitol.
There’s little doubt the appellate court will heed Washington’s warning next week.
In America, no man is above the law.
Sabrina Haake is a columnist and 25-year litigator specializing in 1st and 14th Amendment defense. Follow her on Substack.
