Former President Donald Trump is seeking to have his federal election subversion case dismissed by U.S. District Judge Tanya Chutkan, arguing in a motion filed Thursday that his actions included in the indictment “lie at the heart of his official responsibilities as President.”
Trump is facing four criminal counts stemming from the Department of Justice (DOJ) investigation of the former president’s activities surrounding the January 6 siege on the U.S. Capitol. Special Counsel Jack Smith argues in his 45-page indictment against Trump that the former president repeatedly attempted to remain in power despite losing to President Joe Biden in 2020.
Among Trump’s actions listed in his charges include repeated attempts to spread false statements about the 2020 presidential election, which he claims to this day was stolen from him. In the indictment, the DOJ also accuses the former president in a plan to disrupt Congress‘ electoral certification process in January 2021, as well as in attempts to “oppress, threaten, and intimidate” individuals in their right to vote.
The former president’s attorneys argue that such actions fall under the scope of his presidency, and Trump therefore should be granted “absolute immunity from criminal prosecution.” His defense team also claims that he cannot be charged because he was acquitted in his second impeachment trial, which was related to January 6.
“Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the ‘outer perimeter,’ but at the heart of his official responsibilities as President,” the motion reads.
“In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties,” Trump’s attorneys continued. “Instead, the prosecution falsely claims that President Trump’s motives were impure—that he purportedly ‘knew’ that the widespread reports of fraud and election irregularities were untrue but sought to address them anyway.”
“But as the Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide,” the defense team wrote. “Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution.”
A spokesperson for Smith’s office declined comment on Trump’s request.
Chutkan, the Washington, D.C., district judge presiding over the case, has already handed Trump several legal losses ahead of the trial. Last month, the former president’s request to have Chutkan recuse herself from the case was rejected, and she has set a trial date for March 4—over two years earlier than the April 2026 date requested by Trump’s team.
Trump also could face a gag order in the January 6 case. Federal prosecutors have argued that the former president’s repeated attacks against those related to the investigation warrant limiting what Trump can say about his criminal case in public. Trump’s defense team has argued for the gag order to be dismissed, and a hearing on the DOJ’s request is scheduled for October 16.
In total, the former president is facing 91 criminal counts across four different indictments filed since April. He also faces a civil business fraud suit in New York, which could threaten his control over several of his properties, as well as a defamation suit filed by journalist E. Jean Carroll.
Update 10/05/23, 6:35 p.m. ET: This article has been updated with comment from Smith’s office.