Five former Republican administration officials on Friday rejected former President Donald Trump's claim for legal immunity in his January 6, 2021, Capitol riot case.
Trump was indicted on August 1 by a federal grand jury in Washington, D.C. on charges of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of and attempt to obstruct an official proceeding, and conspiracy against rights. The indictment was a part of Department of Justice's (DOJ) special counsel Jack Smith's investigation after a mob of Trump supporters—allegedly incited by his unfounded claims of widespread voter fraud—violently protest at the Capitol in a failed effort to block President Joe Biden's 2020 Electoral College victory.
The former president, however, was not indicted on charges related to insurrection. Trump, who has denied any wrongdoing and pleaded not guilty, recently filed a motion to dismiss the case, saying that he has presidential immunity that protects him from prosecution, since he was still in office at the time of the conduct in question.
Former officials from five Republican administrations, serving presidents from Richard Nixon to George W. Bush, subsequently filed their own motion on Friday, saying that Trump does not have presidential immunity, while noting the implications that may come along with such a defense.
The full motion was shared on X, formerly Twitter, on Saturday by former federal judge J. Michael Luttig. Luttig, who was an adviser to former Vice President Mike Pence, said that the motion argues that Trump does not have absolute immunity because "in attempting to overturn the presidential election that he knew he had lost, he violated the Executive Vesting Clause of Article II, Section 1, Clause 1 of the Constitution."
"To our knowledge, this is the first brief ever to make this constitutional argument against absolute immunity from criminal prosecution for a president," Luttig wrote in his X post.
Included in the arguments of the brief is that Trump was not acting in a presidential capacity. The motion said, "...post-election day efforts by a first term President to overturn state election results are candidate activities outside the outer perimeter of the duties of the office."
According to the brief, granting Trump presidential immunity, would have broader repercussions, arguing that public interest is to be considered. "The paramount public interest against tyranny is thus antithetical to creating absolute immunity from criminal prosecution that is so broad that it would immunize a President who loses reelection but uses criminal conduct to attempt to usurp a second term."
Granting absolute immunity in this case would also set a dangerous precedent, according to the motion.
"The absolute immunity claimed by former President Trump would immunize and thereby encourage future first-term Presidents who lose re-election to attempt to violate the Executive Vesting Clause by knowingly usurping a second term and preventing their elected successors from commencing their exercise of the executive power," the motion says. "Such immunity itself would pose 'the dangers of intrusion on the authority and functions of the Executive Branch.'"
Newsweek has reached out to Trump's office via online form for comment.
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