Page 1 IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
Case No. 1:23-cr-00257-TSC
MOTION TO DISMISS INDICTMENT
BASED ON PRESIDENTIAL IMMUNITYPage 2 TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iv
President Trump moves to dismiss the indictment in this matter, with prejudice, based on
Presential immunity. In support, President Trump states as follows. ............................................. INTRODUCTION ........................................................................................................................
LEGAL STANDARD ..................................................................................................................... ALLEGATIONS IN THE INDICTMENT ..................................................................................... A. Public Statements and Tweets About the Federal Election and Certification. .................... B. Communications with the U.S. Department of Justice About Investigating Election
Crimes and Possibly Appointing a New Acting Attorney General. ............................................ C. Communications with State Officials About the Federal Election and the Exercise of
Their Official Duties with Respect to the Election. .................................................................... D. Communications with the Vice President and Members of Congress About the Exercise of
Their Official Duties in the Election-Certification Proceedings. ................................................ E. Organizing Slates of Electors as Part of the Attempt to Convince Legislators Not to
Certify the Election Against Defendant. ..................................................................................... ARGUMENT ........................................................................................................................
I. The President Has Absolute Immunity from Criminal Prosecution for Actions Performed
Within the “Outer Perimeter” of His Official Responsibility. .................................................... A. The Doctrine of Separation of Powers and the President’s Unique Role in Our
Constitutional Structure Require Immunity from Criminal Prosecution................................. B. Impeachment and Conviction by the Senate Provide the Exclusive Method of
Proceeding Against a President for Crimes in Office............................................................ C. Early Authorities Support Presidential Immunity from Criminal Prosecution. ............. D. Two Hundred Thirty-Four Years of History and Tradition Support Presidential
Immunity from Criminal Prosecution.................................................................................... E. Analogous Immunity Doctrines Support Presidential Immunity from Criminal
Prosecution. ........................................................................................................................
F.
Concerns of Public Policy Favor the President’s Immunity from Prosecution..............
II. The Indictment Alleges Only Acts Committed Within the Outer Perimeter of the
President’s Official Responsibilities, Which Are Shielded by Absolute Immunity. ................ A. The Scope of Criminal Immunity Includes All Actions That Fall Within the “Outer
Perimeter” of the President’s Official Duties. ....................................................................... iiPage 3 B. The Nature of the Act, Not the Manner in Which It Is Conducted or Its Alleged
Purpose, Determines Whether It Falls Within the Scope of Immunity. ................................ D. Every Act Alleged in the Indictment Falls Within the Outer Perimeter of the President’s
Official Duties and Is Immune from Criminal Prosecution. ................................................. CONCLUSION ........................................................................................................................
iiiPage 4 TABLE OF AUTHORITIES
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................................. Barr v. Matteo, 360 U.S. 564 (1959) ...................................................... 1, 8, 19, 20, 23, 24, 28, Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997) ..................................................................... Bernard v. Cnty. of Suffolk, 356 F.3d 495 (2d Cir. 2004) ............................................................. Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................. Burroughs v. United States, 290 U.S. 534 (1934) .................................................................. 36, Butz v. Economou, 438 U.S. 478 (1978) ................................................................................. 16, Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004) ............................................................... Clinton v. Jones, 520 U.S. 681 (1997) .................................................................. 12, 22, 23, 28, Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) .................................................. Cunningham v. Neagle, 135 U.S. 1 (1890) ................................................................. 35, 36, 38, Dorman v. Higgins, 821 F.2d 133 (2d Cir. 1987) ......................................................................... Ferri v. Ackerman, 444 U.S. 193 (1979) ........................................................................................ Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010)............... 16, 22, Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) .................................................................... 19, Guzman–Rivera v. Rivera–Cruz, 55 F.3d 26 (1st Cir. 1995)........................................................ In re Global Crossing, Ltd. Sec. Litig., 314 F. Supp. 2d 172 (S.D.N.Y. 2003) ............................ In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ........................................................................ Ireland v. Tunis, 113 F.3d 1435 (6th Cir. 1997) ........................................................................... Klayman v. Obama, 125 F. Supp. 3d 67 (D.D.C. 2015) ......................................................... 23, Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019)................. Lynch v. President of the U.S., 2009 WL 2949776 (N.D. Tex. Sept. 14, 2009) ........................... Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............................................................... 13, Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ............................................................................ Matal v. Tam, 582 U.S. 218 (2017) .............................................................................................. Michigan Welfare Rts. Org. v. Trump, No. CV 20-3388 (EGS), 2022 WL 17249218 (D.D.C.
Nov. 28, 2022)...................................................................................................................
Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) ...................................................... Moore v. Trump, No. 22-CV-00010 (APM), 2022 WL 3904320 (D.D.C. Aug. 2, 2022) ............ Morrison v. Olson, 487 U.S. 654 (1988) ...................................................................................... Myers v. United States, 272 U.S. 52 (1926).................................................................................. NFIB v. OSHA, 142 S. Ct. 661 (2022) .......................................................................................... Nixon v. Fitzgerald, 457 U.S. 731 (1982) 1, 8, 9, 10, 13, 15, 16, 17, 18, 19, 21, 22, 24, 25, 26, 33,
Novoselsky v. Brown, 822 F.3d 342 (7th Cir. 2016) ..................................................................... Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484 (10th Cir. 1991) .............................................. Pierson v. Ray, 386 U.S. 547 (1967) ............................................................................ 9, 17, 24, Pleasant Grove City v. Summum, 555 U.S. 460 (2009)................................................................ Ponzi v. Fessenden, 258 U.S. 254 (1922) ..................................................................................... ivPage 5 Prince v. Hicks, 198 F.3d 607 (6th Cir. 1999) .............................................................................. Printz v. United States, 521 U.S. 898 (1997) ................................................................................ Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) ......................................................................... Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990) ........................................................................... Spalding v. Vilas, 161 U.S. 483 (1896)................................................................. 17, 19, 20, 24, Stump v. Sparkman, 435 U.S. 349 (1978) ............................................................................... 18, Tenney v. Brandhove, 341 U.S. 367 (1951) ................................................................ 15, 16, 25, Thompson v. Trump, 590 F. Supp. 3d 46 (D.D.C. 2022) .......................... 28, 30, 31, 32, 34, 38, Trump v. Hawaii, 138 S. Ct. 2392 (2018) ..................................................................................... Trump v. Vance, 140 S. Ct. 2412 (2020) .............................................................. 12, 19, 20, 21, U.S. CONST. art. II, § 3 .................................................................................................. 1, 22, 33, United States v. Chaplin, 54 F. Supp. 926 (S.D. Cal. 1944)......................................................... United States v. Chrestman, 525 F. Supp. 3d 14 (D.D.C. 2021) .................................................. United States v. Nixon, 418 U.S. 683 (1974) .......................................................................... 10, United States v. Saylor, 322 U.S. 385 (1944) ............................................................................... United States v. Sunia, 643 F. Supp. 2d 51 (D.D.C. 2009) ............................................................. United States v. Weeks, 636 F. Supp. 3d 117 (D.D.C. 2022).......................................................... Yates v. Lansing, 5 Johns. 282 (N.Y. 1810) .................................................................................. Statutes
18 U.S.C. § 1015 ........................................................................................................................
18 U.S.C. § 241 ........................................................................................................................
18 U.S.C. § 242 ........................................................................................................................
18 U.S.C. § 611 ........................................................................................................................
18 U.S.C. § 911 ........................................................................................................................
52 U.S.C. § 10307
52 U.S.C. § 20511
52 U.S.C. § 30120
52 U.S.C. § 30124
Other Authorities
1 ANNALS OF CONGRESS 481 (1789) ............................................................................................. 2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863) .................................. 28 THE PAPERS OF ULYSSES S. GRANT (ed. John Y. Simon 2005) ............................................... 3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, § 1563 (1833)
........................................................................................................................
6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW (2d ed. 1937) ................................................. 77 Eng. Rep. 1307....................................................................................................................
Clinton Rossiter, The American Presidency (2d rev. ed. 1960).................................................... H. RES. 24 (117th Cong. 1st Sess.) ............................................................................................... H.R. Rep. No. 81-3138 ................................................................................................................. J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J.
879 ........................................................................................................................
vPage 6 Lawrence H. Chamberlain, The President, Congress and Legislation (1946) ............................ Legislative Activities of Executive Agencies: Hearings Before the H. Select Comm. on Lobbying
Activities, 81st Cong., pt. 10 (1950) ........................................................................................... Lobbying by Executive Branch Personnel, U.S. Op. O.L.C. Supp. 240 (1961) ..................... 40, Office & Duties of Attorney General, 6 U.S. Op. Atty. Gen. 326 (1854) ..................................... Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 U.S. Op. O.L.C. 101 (1984) ................................................... SCALIA & GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, § 10 (2012) .......... THE FEDERALIST No. 43 (J. Madison) .......................................................................................... THE FEDERALIST No. 65 (A. Hamilton) ........................................................................................ THE FEDERALIST No. 69 (C. Rossiter ed. 1961) ........................................................................... THE FEDERALIST No. 77 (A. Hamilton) ........................................................................................ Thomas J. Norton, The Constitution of the United States: Its Sources and Its Application (special
ed. 1940, 8th printing 1943) ...................................................................................................... U.S. Dep’t of Justice, Election Crimes Branch ...................................................................... 33, U.S. Dep’t of Justice, Federal Prosecution of Election Offenses (8th ed. 2017) ......................... Constitutional Provisions
U.S. CONST. art. I, § 3, cl. 7 .............................................................................................. 11, 12, U.S. CONST. art. II, § 1 .............................................................................................................. 9, U.S. CONST. art. II, § 2, cl. 2 ......................................................................................................... U.S. CONST. art. II, §1, cl. 2 ..........................................................................................................
viPage 7 President Trump moves to dismiss the indictment in this matter, with prejudice, based on
Presidential immunity. In support, President Trump states as follows.
INTRODUCTION
The President of the United States sits at the heart of our system of government. He is our
Nation’s leader, our head of state, and our head of government. As such, the founders tasked the
President—and the President alone—with the sacred obligation of “tak[ing] Care that the Laws be
faithfully executed.” U.S. CONST. art. II, § 3.
To ensure the President may serve unhesitatingly, without fear that his political opponents
may one day prosecute him for decisions they dislike, the law provides absolute immunity “for
acts within the ‘outer perimeter’ of [the President’s] official responsibility.” Nixon v. Fitzgerald
457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion)).
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. 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. 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. Rather, where, as here, the President’s actions are within
the ambit of his office, he is absolutely immune from prosecution. Spalding v. Vilas, 161 U.S. 483,
494, 949 (1896) (“The ‘allegation of malicious or corrupt motives’ does not affect a public
official’s immunity and “[t]he motive that impelled [the official] to do that of which the plaintiff
1Page 8 complains is … wholly immaterial.”). Therefore, the Court should dismiss the indictment, with
prejudice. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) (“Dismissal of the
indictment is the proper sanction when a defendant has been granted immunity from
prosecution…”) (citation omitted).
LEGAL STANDARD
“In ruling on a motion to dismiss for failure to state an offense, a district court is” typically
“limited to reviewing the face of the indictment and, more specifically, the language used to charge
the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphasis omitted).
“When considering a motion to dismiss, the court must review the face of the indictment,” and
“the indictment must be viewed as a whole and the allegations must be accepted as true at this
stage of the proceedings.” United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
ALLEGATIONS IN THE INDICTMENT
President Trump (the incumbent administration’s leading opponent in the upcoming
Presidential election) emphatically denies the truth of any allegations in the indictment. Rather,
this memorandum sets forth the facts alleged in the indictment so that their legal sufficiency may
be assessed for a motion to dismiss. Id. Moreover, the Supreme Court has “repeatedly … stressed
the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Davis
v. Scherer, 468 U.S. 183, 195 (1984); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Malley v.
Briggs, 475 U.S. 335, 341 (1986); Anderson v. Creighton, 483 U.S. 635, 646, n.6 (1987)); and
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Accordingly, this motion addresses only the
question of Presidential immunity. Other fatal deficiencies in the indictment will be addressed in
future motion(s) and proceeding(s).
2Page 9 The indictment alleges that President Trump took a series of actions that form the basis of
its charges. These acts fall into five basic categories. The indictment alleges that President Trump,
while he was still President: (1) made public statements about the administration of the federal
election, and posted Tweets about the administration of the federal election; (2) communicated
with senior Department of Justice (“DOJ”) officials about investigating election fraud and about
choosing the leadership of DOJ; (3) communicated with state officials about the administration of
the federal election and their exercise of official duties with respect to it; (4) communicated with
the Vice President, in his legislative capacity as President of the Senate, and with other Members
of Congress about the exercise of their official duties regarding the election certification; and (5)
authorized or directed others to organize contingent slates of electors in furtherance of his attempts
to convince the Vice President to exercise his official authority in a manner advocated for by
President Trump.A.
Public Statements and Tweets About the Federal Election and Certification.
First, the indictment alleges that President Trump, while he was still President, made public
statements about the administration of the 2020 federal election. See Doc. 1, ¶ 2 (alleging public
statements claiming fraud in the administration of the federal election); id. ¶¶ 11-12 (alleging a
series of public statements claiming fraud in the federal election); id. ¶ 19 (public statement about
election fraud in Arizona); id. ¶ 32 (public statement regarding Georgia’s election administration);
id. ¶ 33 (public statement about fraudulent voting in Georgia); id. ¶ 34 (public statement suggesting
fraudulent voting in Detroit); id. ¶ 37 (public statement about suspected election fraud in
Michigan); id. ¶ 41 (public statement about election fraud in Michigan); id. ¶ 42 (public statement
In certain cases, the indictment does not specify whether President Trump had direct involvement
in many of these actions or even knew they were occurring; but even assuming that he did, the acts
alleged are all still of a public character.
3Page 10 disputing a Pennsylvania local official’s public statement about the absence of fraud in
Philadelphia); id. ¶ 46 (public statement claiming election fraud in Pennsylvania); id. ¶ 52 (public
statement about election fraud in Wisconsin); id. ¶ 99 (public statement about the scope of the
Vice President’s authority on January 6); id. ¶ 102 (public statement in speech about the scope of
the Vice President’s authority on January 6); id. ¶ 104 (statements in public speech on January about election fraud, the scope of the Vice President’s authority, the authority of state officials,
and the certification proceedings).
Closely related to the allegations of public statements, the indictment alleges that President
Trump posted a series of Tweets about the administration of the federal election and its
certification. Id. ¶¶ 22, 28 (Tweet addressing evidence of election fraud in Georgia); id. ¶ (Tweet criticizing Pennsylvania legislators’ claim about slates of electors); id. ¶ 50 (Tweet
addressing election fraud in Wisconsin); id. ¶¶ 87, 90(c) (Tweets urging Americans to protest fraud
in the federal election); id. ¶ 88 (Tweet regarding the Vice President’s authority regarding electioncertification proceedings); id. ¶ 96(a)-(b) (Tweets regarding the Vice President’s electioncertification authority and encouraging Americans to protest election fraud); id. ¶ 96(c) (Tweet
announcing public speech about the election); id. ¶ 100(a)-(b) (Tweets about the Vice President’s
authority); id. ¶ 111 (Tweet about the scope of the Vice President’s authority); id. ¶114 (Tweets
urging protestors to “Stay peaceful!” and “to remain peaceful. No violence!”); id. ¶ 116 (Tweet of
a video claiming fraud in the federal election); id. ¶ 118 (Tweet claiming fraud in the election).
B.
Communications with the U.S. Department of Justice About Investigating
Election Crimes and Possibly Appointing a New Acting Attorney General.
The indictment alleges that President Trump attempted to “use the power and authority of
the Justice Department to conduct … election crime investigations,” and “to send a letter to the
targeted states” from the Justice Department that “claimed that the Justice Department had
4Page 11 identified significant concerns that may have impacted the election outcome.” Doc. 1, ¶ 10(c). The
indictment alleges a series of meetings and communications between President Trump and others,
including senior officials in the U.S. Department of Justice, relating to the investigation of federal
election fraud and possibly appointing a new Acting Attorney General of the United States (which,
as the indictment states, President Trump ultimately did not do). Id. ¶ 27 (alleging a meeting with
the incoming Acting Attorney General and Acting Deputy Attorney General “to discuss allegations
of election fraud”); id. ¶ 29 (phone call with Acting Attorney General and Acting Deputy Attorney
General to urge them to investigate election fraud); id. ¶ 36 (communication with the Attorney
General about election fraud in Michigan); id. ¶ 45 (two communications with the Acting Attorney
General and Acting Deputy Attorney General to urge them to investigate fraud in Pennsylvania);
id. ¶ 51 (communication urging the Acting Attorney General and Acting Deputy Attorney General
to investigate fraud in Wisconsin); id. ¶¶ 70-85 (meetings and communications with Department
of Justice officials about investigating election fraud and/or selecting an Acting Attorney General
who was willing to investigate election fraud); id. ¶ 70 (attempt to convince the Department of
Justice to send a letter to state officials expressing concerns about election fraud); id. ¶¶ 71-(communications with a DOJ official about election fraud); id. ¶ 74 (phone call with the Acting
Attorney General and Acting Deputy Attorney General about changing the leadership at the
Department of Justice); id. ¶ 77 (Oval Office meeting with the Acting Attorney General, the Acting
Deputy Attorney General, and “other advisors” about election fraud and possibly changing the
leadership of DOJ); id. ¶ 80 (meeting with DOJ official at the White House and allegedly offering
him the role of Acting Attorney General); id. ¶ 84 (meeting with the Acting Attorney General, the
Acting Deputy Attorney General, the Assistant Attorney General for the Office of Legal Counsel,
5Page 12 the White House Counsel, the Deputy White House Counsel, and a Senior Advisor about changing
the leadership of the Department of Justice, which the President decided not to do).
C.
Communications with State Officials About the Federal Election and the
Exercise of Their Official Duties with Respect to the Election.
The indictment alleges a series of communications—some by President Trump, and some
by other unnamed individuals—with state officials about the administration of the federal election
and the exercise of their official duties with respect to the federal election. Doc. 1, ¶ 10(a); id.
¶¶ 15-18 (communications with the Speaker of Arizona House of Representatives about certifying
Arizona’s Presidential electors); id. ¶¶ 21 (communications with Members of the Georgia Senate
about certifying Georgia’s Presidential electors); ¶ 24 (phone call with the Georgia Attorney
General); ¶ 26 (communications with members of the Georgia House of Representatives); ¶ (phone call with the Georgia Secretary of State regarding the validity of Georgia’s Presidential
electors); ¶ 35 (meeting with the Speaker of the Michigan House of Representatives and the
Majority Leader of the Michigan Senate about the administration of the election in Michigan); ¶¶
38-39 (communications with Michigan legislative leaders urging them to take legislative action
recognizing that the election results are in dispute); ¶ 43 (meeting with Pennsylvania state
legislators about the administration of the federal election in Pennsylvania).
D.
Communications with the Vice President and Members of Congress About the
Exercise of Their Official Duties in the Election-Certification Proceedings.
The indictment charges that President Trump attempted to “enlist the Vice President to use
his ceremonial role at the January 6 certification proceeding to … alter the election results,” by
“attempt[ing] to convince the Vice President” to rely on contingent slates of electors submitted by
the President’s alleged allies. Doc. 1, ¶ 10(d). Here, the indictment alleges that President Trump
and others on his official staff made a series of communications with the Vice President—in his
6Page 13 legislative capacity as President of the Senate—about the exercise of his official duties in the
January 6 election-certification proceedings. Id. ¶¶ 86-95; id. ¶ 90(a)-(d) (alleging “several private
phone calls” in December 2020 and January 2021 between the Defendant and the Vice President,
in which the Defendant allegedly urged the Vice President “to use his ceremonial role at the
certification proceeding on January 6 to … overturn the results of the election”); id. ¶¶ 92-(meeting with the Vice President, the Vice President’s Chief of Staff, and the Vice President’s
Counsel regarding the Vice President’s exercise of his authority as President of the Senate); id.
¶ 95 (meeting with the Vice President’s Chief of Staff and the Vice President’s Counsel on the
same topic); id. ¶ 97 (alleging a private meeting with the Vice President on the same topic); id.
¶ 101 (communication asking a United States Senator to hand-deliver documents to the Vice
President regarding the contingent slates of electors); id. ¶ 102 (phone call with the Vice President
urging him to exercise his authority as President of the Senate in the President’s favor); id. ¶ (urging Vice President to exercise his official duties with respect to the certification).
In addition to communications with the Vice President, the indictment alleges a handful of
communications and attempted communications with Members of Congress regarding their
official authority in Congress with respect to the election-certification proceedings. Id. ¶ (phone call with the Minority Leader of the U.S. House of Representatives); id. ¶ 119(a) (attempts
to communicate with two U.S. Senators regarding the certification); id. ¶ 119(b) (calls with five
U.S. Senators and one U.S. Representative about the certification); ¶ 119(c)-(e) (attempts to
contact six U.S. Senators about the certification).
E.
Organizing Slates of Electors as Part of the Attempt to Convince Legislators
Not to Certify the Election Against Defendant.
Closely related to these communications with the Vice President and Members of
Congress, the indictment alleges that other individuals organized slates of contingent electors from
7Page 14 several States to provide a justification for the Vice President to exercise his official duties in the
manner favored by President Trump. Doc. 1, ¶¶ 53-69. According to the indictment, these
contingent slates of electors allowed President Trump, in his communications with the Vice
President, to justify the exercise of the Vice President’s authority to certify the election in President
Trump’s favor or delay its certification. Id. ¶¶ 10(b), 53. The indictment alleges that President
Trump knew of these actions organizing the slates of electors and directed them to continue, but it
does not allege that President Trump took any particular action in organizing them. Id. ¶¶ 54, 56.
ARGUMENT
I.
The President Has Absolute Immunity from Criminal Prosecution for Actions
Performed Within the “Outer Perimeter” of His Official Responsibility.
“In view of the special nature of the President’s constitutional office and functions,” a
current or former President has “absolute Presidential immunity from [civil] damages liability for
acts within the ‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U.S. at 756 (quoting
Barr, 360 U.S. at 575). No court has addressed whether such Presidential immunity includes
immunity from criminal prosecution for the President’s official act. The question remains a
“‘serious and unsettled question’ of law.” See id. at 743 (citation omitted) (holding “[i]n light of
the special solicitude due to claims alleging a threatened breach of essential Presidential
prerogatives under the separation of powers,” issues of Presidential immunity were “serious and
unsettled”). In addressing this question, the Court should consider the Constitution’s text,
structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines,
and considerations of public policy. See id. at 747.
A.
The Doctrine of Separation of Powers and the President’s Unique Role in Our
Constitutional Structure Require Immunity from Criminal Prosecution.
“The President occupies a unique position in the constitutional scheme.” Fitzgerald, U.S. at 749. “Article II, § 1, of the Constitution provides that ‘[t]he executive Power shall be vested
8Page 15 in a President of the United States....’ This grant of authority establishes the President as the chief
constitutional officer of the Executive Branch, entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity.” Id. at 749-50.
Due to this “unique status” in our constitutional structure of separated powers, which
“distinguishes him from other executive officials,” the Supreme Court held in Fitzgerald that the
President is, and must be, “absolute[ly] immun[e] from damages liability predicated on his official
acts.” Id. 749–50 (“We consider this immunity a functionally mandated incident of the President's
unique office, rooted in the constitutional tradition of the separation of powers and supported by
our history.”); see also id. at 748 (the “policies and principles [mandating immunity] may be
considered implicit in the nature of the President’s office in a system structured to achieve effective
government under a constitutionally mandated separation of powers”).
In reaching this conclusion, the Supreme Court held that subjecting a President to personal
liability for his official actions would improperly “diver[t] [the President’s] energies” and “raise
unique risks to the effective functioning of government,” especially given “the singular importance
of the President’s duties.” Id. at 751.
Chief among these risks is the chilling effect personal liability would have on the
President’s decision-making, particularly in “matters likely to ‘arouse the most intense feelings.’”
Id. at 752 (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). “[I]t is in precisely such cases that
there exists the greatest public interest in providing an official ‘the maximum ability to deal
fearlessly and impartially with’ the duties of his office.” Id. (quoting Ferri v. Ackerman, 444 U.S.
193, 203 (1979)). “This concern is compelling where the officeholder must make the most
sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id.
9Page 16 “Nor can the sheer prominence of the President’s office be ignored.” Id. at 752-53. “In
view of the visibility of his office and the effect of his actions on countless people, the President
would be an easily identifiable target for” prosecution in countless federal, state, and local
jurisdictions across the country. Id. at 753. “Cognizance of this personal vulnerability frequently
could distract a President from his public duties, to the detriment of not only the President and his
office but also the Nation that the Presidency was designed to serve.” Id.
Although Fitzgerald concerned civil liability, the exact same, if not more elevated,
concerns apply to potential criminal prosecutions, mandating the same absolute immunity. Vertical
and horizontal separation of powers simply cannot permit local, state, or subsequent federal
officials to constrain the President’s exercise of executive judgment through threats of criminal
prosecution. To hold otherwise would be to allow the President’s political opponents to usurp his
or her constitutional role, fundamentally impairing our system of government. For this very reason,
Fitzgerald recognized that Presidential immunity is not just a creature of common law but also
“rooted in the separation of powers under the Constitution.” Id. at 753 (quoting United States v.
Nixon, 418 U.S. 683, 708 (1974)).
To be sure, Fitzgerald did not decide whether Presidential immunity extends to criminal
prosecution, and it acknowledged that “there is a lesser public interest in actions for civil damages
than … in criminal prosecutions.” 457 U.S. at 754 n.37. But the fact that the doctrine of Presidential
immunity is rooted in the separation of powers dictates that immunity must extend to criminal
prosecution as well as civil liability. While the “public interest … in criminal prosecutions” may
be important, id., it is not important enough to justify abrogating the separation of powers, the
most fundamental structural feature of our constitutional system. Further, exposure to criminal
prosecution poses a far greater threat than the prospect of civil lawsuits to the President’s
“maximum ability to deal fearlessly and impartially with the duties of his office,” and thus it raises
even greater “risks to the effective functioning of government.” Fitzgerald, 457 U.S. at (citation and quotation marks omitted). Fitzgerald’s reasoning, therefore, entails that Presidential
immunity include immunity from both civil suit and criminal prosecution.
10Page 17 “Nothing is so politically effective as the ability to charge that one’s opponent and his
associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And
nothing so effectively gives an appearance of validity to such charges as a Justice Department
investigation and, even better, prosecution.” Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia,
J., dissenting). “The present [indictment] provides ample means for that sort of attack, assuring
that massive and lengthy investigations” and prosecutions “will occur,” bedeviling every future
Presidential administration and ushering in a new era of political recrimination and division. Id.
(Analogically, the executive privilege protecting Presidential communications is also
designed to protect the President’s ability to function in his role to the maximum extent, and “is
fundamental to the operation of Government and inextricably rooted in the separation of powers
under the Constitution.” Nixon, 418 U.S. at 708.)
B.
Impeachment and Conviction by the Senate Provide the Exclusive Method of
Proceeding Against a President for Crimes in Office.
Presidential immunity from criminal prosecution for official acts is also rooted in the text
of the Constitution. The Impeachment Clauses provide that the President may be charged by
indictment only in cases where the President has been impeached and convicted by trial in the
Senate. Here, President Trump was acquitted by the Senate for the same course of conduct.
The Impeachment Clause of Article I provides that “Judgment in Cases of Impeachment
shall not extend further than to removal from Office … but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S.
CONST. art. I, § 3, cl. 7 (emphasis added). Because the Constitution specifies that only “the Party
convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and
Punishment,” id., it presupposes that a President who is not convicted may not be subject to
criminal prosecution. As Justice Alito recently noted, “[t]he plain implication” of this Clause “is
11Page 18 that criminal prosecution, like removal from the Presidency and disqualification from other offices,
is a consequence that can come about only after the Senate’s judgment, not during or prior to the
Senate trial.” Trump v. Vance, 140 S. Ct. 2412, 2444 (2020) (Alito, J., dissenting). “This was how
Hamilton explained the impeachment provisions in the Federalist Papers. He wrote that a President
may ‘be impeached, tried, and, upon conviction ... would afterwards be liable to prosecution and
punishment in the ordinary course of law.’” Id. (quoting THE FEDERALIST No. 69, p. 416 (C.
Rossiter ed. 1961)); see also THE FEDERALIST No. 77, p. 464 (A. Hamilton) (a President is “at all
times liable to impeachment, trial, [and] dismission from office,” but any other punishment must
come only “by subsequent prosecution in the common course of law”). See also SCALIA &
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, § 10, at 107 (2012) (“When a car
dealer promises a low financing rate to ‘purchasers with good credit,’ it is entirely clear that the
rate is not available to purchasers with spotty credit.”).
“James Wilson—who had participated in the Philadelphia Convention at which the
document was drafted—explained that … the President … ‘is amenable to [the laws] in his private
character as a citizen, and in his public character by impeachment.’” Clinton v. Jones, 520 U.S.
681, 696 (1997) (quoting 2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863))
(cleaned up). “With respect to acts taken in his ‘public character’—that is, official acts—the
President may be disciplined principally by impeachment, not by private lawsuits for damages.
But he is otherwise subject to the laws for his purely private acts.” Id.; see also THE FEDERALIST
No. 43 (J. Madison); THE FEDERALIST No. 65 (A. Hamilton).
Fitzgerald reinforced this conclusion:
A rule of absolute immunity for the President will not leave the
Nation without sufficient protection against misconduct on the part
of the Chief Executive. There remains the constitutional remedy of
impeachment. In addition, there are formal and informal checks on
12Page 19 Presidential action…. The President is subjected to constant scrutiny
by the press. Vigilant oversight by Congress also may serve to deter
Presidential abuses of office, as well as to make credible the threat
of impeachment. Other incentives to avoid misconduct may include
a desire to earn reelection, the need to maintain prestige as an
element of Presidential influence, and a President’s traditional
concern for his historical stature.
Fitzgerald, 457 U.S. at 757. Notably absent from Fitzgerald’s list of “formal and informal checks”
on the President for “abuses of office,” id., is any mention of criminal prosecution.
Here, President Trump is not a “Party convicted” in an impeachment trial by the Senate.
U.S. CONST. art. I, § 3, cl. 7. In January 2021, he was impeached on charges arising from the same
course of conduct at issue in the indictment. H. RES. 24 (117th Cong. 1st Sess.), available at
https://www.congress.gov/bill/117th-congress/house-resolution/24/text. President Trump was
acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution.
The Special Counsel cannot second-guess the judgment of the duly elected United States Senate.
C.
Early Authorities Support Presidential Immunity from Criminal
Prosecution.
In Marbury v. Madison, Charles Lee—Attorney General of the United States under
Presidents George Washington and John Adams—“declare[d] it to be my opinion, grounded on a
comprehensive view of the subject, that the President is not amenable to any court of judicature
for the exercise of his high functions, but is responsible only in the mode pointed out in the
constitution.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 149 (1803) (emphasis added). In his
opinion for the Court, Chief Justice Marshall endorsed this view: “[b]y the constitution of the
United States, the President is invested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to his country in his political
character, and to his own conscience.” Id. at 165–66. In cases involving the President’s official
duties, “whatever opinion may be entertained of the manner in which executive discretion may be
13Page 20 used, still there exists, and can exist, no power to control that discretion. The subjects are political.
They respect the nation, not individual rights, and being entrusted to the executive, the decision of
the executive is conclusive.” Id. at 166. “The acts of such an officer, as an officer, can never be
examinable by the courts.” Id. (emphasis added). When the President “act[s] in cases in which the
executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than
that their acts are only politically examinable.” Id. If the President “acts in a case, in which
executive discretion is to be exercised … any application to a court to control, in any respect, his
conduct, would be rejected without hesitation.” Id. at 170–71.
Justice Story cited Marbury v. Madison for this point in his oft-cited 1833 treatise:
There are other incidental powers, belonging to the executive
department, which are necessarily implied from the nature of the
functions, which are confided to it. Among these, must necessarily
be included the power to perform them, without any obstruction or
impediment whatsoever. The president cannot, therefore, be liable
to arrest, imprisonment, or detention, while he is in the discharge of
the duties of his office; and for this purpose his person must be
deemed, in civil cases at least, to possess an official inviolability. In
the exercise of his political powers he is to use his own discretion,
and is accountable only to his country, and to his own conscience.
His decision, in relation to these powers, is subject to no control;
and his discretion, when exercised, is conclusive.
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, § 1563 (1833),
available
at
https://lonang.com/library/reference/story-commentaries-us-constitution/sto-337/
(visited August 14, 2023) (emphasis added).
Likewise, Martin v. Mott held that, “[w]hen the President exercises an authority confided
to him by law,” his conduct cannot be second-guessed by a jury: “If the fact of the existence of the
exigency were averred, it would be traversable, and of course might be passed upon by a jury; and
thus the legality of the orders of the President would depend, not on his own judgment of the facts,
but upon the finding of those facts upon the proofs submitted to a jury.” 25 U.S. (12 Wheat.) 19,
14Page 21 32-33 (1827); see also Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (holding that the immunity
of Members of Congress “would be of little value if they could be subjected to … the hazard of a
judgment against them based upon a jury’s speculation as to motives”).
D.
Two Hundred Thirty-Four Years of History and Tradition Support
Presidential Immunity from Criminal Prosecution.
In Nixon v. Fitzgerald, the Supreme Court emphasized that “the presuppositions of our
political history,” including “tradition[s] so well grounded in history and reason,” help to define
the scope of Presidential immunity. 457 U.S. at 745 (citation and quotation marks omitted); see
also Tenney, 341 U.S. at 372.
Here, 234 years of unbroken historical practice—from 1789 until 2023—provide
compelling evidence that the power to indict a former President for his official acts does not exist.
No prosecutor, whether state, local, or federal, has this authority; and none has sought to exercise
it until now. American history teems with situations where the opposing party passionately
contended that the President and his closest advisors were guilty of criminal behavior in carrying
out their official duties—John Quincy Adams’ “corrupt bargain” with Henry Clay provides a
notable example. In every such case, the outraged opposing party eventually took power, yet none
ever brought criminal charges against the former President based on his exercise of official duties.
Nor did any state or local prosecutor of the thousands of such officials throughout the history and
tradition of United States attempt a similar maneuver.
A strong historical practice of not exercising a supposed power—especially when there has
been ample incentive and opportunity to do so—undercuts the sudden discovery of the newly
minted power. See, e.g., NFIB v. OSHA, 595 U.S. 109, 119 (2022) (per curiam) (“It is telling that
OSHA, in its half century of existence, has never before adopted a broad public health regulation
of this kind…. [t]his ‘lack of historical precedent’ … is a ‘telling indication’ that the mandate
15Page 22 extends beyond the agency’s legitimate reach.”) (citation omitted); Seila Law LLC v. CFPB, S. Ct. 2183, 2201 (2020) (same); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 505 (2010) (same); Printz v. United States, 521 U.S. 898, 916 (1997) (“To complete the
historical record, we must note that there is not only an absence of executive-commandeering
statutes in the early Congresses, but there is an absence of them in our later history as well, at least
until very recent years.”). “The constitutional practice . . . tends to negate the existence of
the…power asserted here.” Printz, 521 U.S. at 918.
E.
Analogous Immunity Doctrines Support Presidential Immunity from
Criminal Prosecution.
Analogous immunity doctrines strongly favor the conclusion that absolute Presidential
immunity extends to immunity from criminal prosecution.
1.
Presidential immunity from civil suits.
First, Nixon v. Fitzgerald holds the President is absolutely immune from personal liability
for conduct within the “outer perimeter” of his official duties. 457 U.S. at 756. The inference that
such immunity should include both civil and criminal liability is compelling.
In their common law origins, immunity doctrines extended to both civil and criminal
liability, because “[t]he immunity of federal executive officials began as a means of protecting
them in the execution of their federal statutory duties from criminal or civil actions based on state
law.” Butz v. Economou, 438 U.S. 478, 489 (1978). Common-law immunity doctrines, therefore,
encompass the “privilege … to be free from arrest or civil process,” i.e., criminal, and civil
proceedings alike. Tenney, 341 U.S. at 372. In fact, immunity from criminal prosecution is more
fundamental to the concept of official immunity than immunity from mere suits for civil damages,
as such doctrines arose primarily to avoid potential retribution via criminal charges brought by
government officials. See Butz v. Economou, 438 U.S. at 489.
16Page 23 2.
Absolute judicial immunity.
Like absolute executive immunity, absolute judicial immunity protects state and federal
judges from criminal prosecution, as well as civil suits, based on their official judicial acts. In
Spalding v. Vilas, the Supreme Court noted that the doctrine of judicial immunity extends to both
“civil suit” and “indictment.” 161 U.S. 483, 494 (1896) (quoting Yates v. Lansing, 5 Johns. 282,
291 (N.Y. 1810) (Kent, C.J.)). In Pierson, likewise, the Supreme Court held that “[t]his immunity
applies even when the judge is accused of acting maliciously and corruptly.” Pierson, 386 U.S. at
554; see also Fitzgerald, 457 U.S. at 745-46.
At common law, judicial immunity included immunity from criminal prosecution. “In the
case of courts of record … it was held, certainly as early as [the 14th century], that a litigant could
not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his
jurisdiction.” J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, DUKE L.J. 879, 884 (emphasis added) (quoting 6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW
235-36 (2d ed. 1937)); see also id. at 887 n.39 (quoting 77 Eng. Rep. at 1307).
In accordance with this long common law tradition, our courts have universally rejected
criminal charges against judges for their judicial acts. In United States v. Chaplin, for instance, the
Court held that judicial immunity barred the criminal prosecution of a judge who was “acting in
his judicial capacity and within his jurisdiction in imposing sentence and probation upon a person
charged with an offense in his court to which the defendant ha[d] pleaded guilty.” 54 F. Supp. 926,
928 (S.D. Cal. 1944). In reaching this conclusion, the Chaplin Court extensively reviewed historic
authorities and, like those authorities, determined criminal prosecution of judges for judicial acts
“would … destroy the independence of the judiciary and mark the beginning of the end of an
independent and fearless judiciary.” Id. at 934; see also id. (“The rich tradition, the long line of
17Page 24 decisions, the confidence of our people in the state and federal judiciary, the experience of over a
century and a half expressed in our legal lore, co-extensive with our national existence, cannot be
ignored in deciding this issue.”). The same reasoning applies to the President here.
F.
Concerns of Public Policy Favor the President’s Immunity from Prosecution.
In considering Presidential immunity, the Supreme Court “has weighed concerns of public
policy, especially as illuminated by our history and the structure of our government.” Fitzgerald,
457 U.S. at 747–48. Here, public policy overwhelmingly supports the finding of immunity.
1.
The Presidency involves “especially sensitive duties.”
First, the Supreme Court emphasizes the necessity of robust immunity for officials who
have “especially sensitive duties,” such as prosecutors and judges. Fitzgerald, 457 U.S. at (citing Imbler, 424 U.S. 409 and Stump v. Sparkman, 435 U.S. 349 (1978)). No one exercises more
sensitive duties than the President: “Under the Constitution and laws of the United States the
President has discretionary responsibilities in a broad variety of areas, many of them highly
sensitive.” Id. at 756. As the government recently explained, “immunity reaches all of the
President’s conduct within the vast ambit of his Office, including its ‘innumerable’ constitutional,
statutory, and historical dimensions. . . . In all contexts, questions of Presidential immunity must
be approached with the greatest sensitivity to the unremitting demands of the Presidency.” Brief
for United States as Amicus Curiae in Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, at
1–2 (D.C. Cir. filed March 2, 2023) (hereafter “Blassingame Amicus Br.,” attached as Exhibit A)
(citing Fitzgerald, 457 U.S. at 750, 756).
2.
The Presidency requires “bold and unhesitating action.”
Second, the Supreme Court reasons that immunity is most appropriate for officials from
whom “bold and unhesitating action” is required. Id. at 745; see also Imbler, 424 U.S. at 423-24,
18Page 25 427-28 (holding that prosecutors must enjoy absolute immunity to ensure “the vigorous and
fearless performance of the prosecutor’s duty that is essential to the proper functioning of the
criminal justice system”).
“[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to
the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of their duties,” and subject them “to the constant
dread of retaliation.” Barr, 360 U.S. at 571–72 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949) (Hand, J.)). In Vance, the Supreme Court noted this concern was central to its adoption
of absolute immunity for the President, holding that Fitzgerald “conclud[ed] that a President …
must ‘deal fearlessly and impartially with the duties of his office’—not be made ‘unduly cautious
in the discharge of [those] duties’ by the prospect of civil liability for official acts.’” Vance, S. Ct. at 2426; accord Blassingame Amicus Br. at 9 (“[A]s the Supreme Court has emphasized, it
is precisely in such circumstances that there is “the greatest public interest in providing” the
President with “the maximum ability to deal fearlessly and impartially with the duties of his
office.” (quoting Fitzgerald 457 U.S. at 752–53)).
For that reason, the Supreme Court emphasizes that, “[i]n exercising the functions of his
office, the head of an Executive Department, keeping within the limits of his authority, should not
be under an apprehension that the motives that control his official conduct may, at any time,
become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and
effective administration of public affairs as entrusted to the executive branch of the government,
if he were subjected to any such restraint.” Fitzgerald, 457 U.S. at 745 (quoting Spalding, 161 U.S.
at 498) (emphasis added); see also Barr, 360 U.S. at 573 (holding that official immunity is
“designed to aid in the effective functioning of government”).
19Page 26 “Frequently acting under serious constraints of time and even information,” a President
inevitably makes many important decisions, and “[d]efending these decisions, often years after
they were made, could impose unique and intolerable burdens….” Imbler, 424 U.S. at 425–26; see
also Barr, 360 U.S. at 571 (expressing concern that suits would “inhibit the fearless, vigorous, and
effective administration of policies of government”).
The President’s “focus should not be blurred by even the subconscious knowledge” of the
risk of future prosecution. Imbler, 424 U.S. at 427. The threat of criminal prosecution poses a
greater risk of deterring bold and unhesitating action than the threat of civil suit, and, therefore,
requires at least the same immunity to ensure the President maintains the “maximum ability to deal
fearlessly and impartially with the duties of his office.” Fitzgerald, 457 U.S. at 751 (citation and
quotation marks omitted); see also Vance, 140 S. Ct. at 2452 (Alito, J., dissenting) (“There is no
question that a criminal prosecution holds far greater potential for distracting a President and
diminishing his ability to carry out his responsibilities than does the average civil suit.”).
3.
Without Immunity the President would be “harassed by vexatious
actions.”
Another key purpose of immunity for officials is to “prevent them being harassed by
vexatious actions.” Spalding, 161 U.S. at 495 (quotation omitted). In Imbler, the Supreme Court
held that the common-law immunity of prosecutors rests on the “concern that harassment by
unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties,
and the possibility that he would shade his decisions instead of exercising the independence of
judgment required by his public trust.” 424 U.S. at 423; see also Butz, 438 U.S. at 512. The
President, as the most high-profile government official in the country, is most likely to draw
politically motivated ire, and most likely to be targeted for harassment by vexatious actions. See
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 369 (2004) (“[R]ecognizing the paramount
20Page 27 necessity of protecting the Executive Branch from vexatious litigation that might distract it from
the energetic performance of its constitutional duties.”).II.
The Indictment Alleges Only Acts Committed Within the Core of the President’s
Official Responsibilities, Which Are Shielded by Absolute Immunity.
The indictment is based entirely on alleged actions within the heartland of President
Trump’s official duties, or at the very least, within the “outer perimeter” of his official duties. As
President Trump is absolutely immune from criminal prosecution for such acts, the Court should
dismiss the indictment.
A.
The Scope of Criminal Immunity Includes All Actions That Fall Within the
“Outer Perimeter” of the President’s Official Duties.
The Supreme Court adopted the expansive “outer perimeter” test for immunity precisely
because any “functional” test would be inconsistent with the broad scope of Presidential duties.
Id. at 756; accord Blasingame Amicus Br. at 9 (“This immunity, the Supreme Court has explained,
may not be curtailed by attempting to parse discrete Presidential ‘functions,’ or through allegations
that official acts were taken with improper motives. Because the President has ‘discretionary
responsibilities in a broad variety of areas, . . . [i]n many cases it would be difficult to determine
which of the President’s innumerable ‘functions’ encompassed a particular action.’” (quoting
Fitzgerald, 457 U.S. at 756)).
In other words, the “outer perimeter” of Presidential duties—and thus the scope of
Presidential immunity—encircles a vast swath of territory, because the scope of the President’s
Vance held that the need to avoid vexatious litigation was not, standing alone, sufficient to shield
the President from a criminal subpoena for private records, 140 S. Ct. at 2426. However, criminal
prosecutions for official acts raise numerous additional practical and prudential concerns that do
not apply in the subpoena context. It is these additional factors, in combination with the risk of
vexatious litigation, that compels executive immunity—as Fitzgerald, Spalding, Butz, Imbler, and
similar cases held.
21Page 28 duty and authority in our constitutional system is uniquely and extraordinarily broad. “Article II
‘makes a single President responsible for the actions of the Executive Branch,’” Free Enter. Fund,
561 U.S. at 496-97 (quoting Clinton, 520 U.S. at 712-13 (Breyer, J., concurring in judgment)), and
the President is “the only person who alone composes a branch of government,” Trump v. Mazars
USA, LLP, 140 S. Ct. 2019, 2034 (2020).
Among these Article II duties, perhaps the most fundamental are the framers’ dual
mandates that he hold “the executive Power,” and with it, the duty to “take Care that the Laws be
faithfully executed.” U.S. CONST. art. II, §§ 1, 3. To this end, the President must assume
“supervisory and policy responsibilities of utmost discretion and sensitivity,” which “include[s]
the enforcement of federal law.” Fitzgerald, 457 U.S. at 750; see also Vance, 140 S. Ct. at (The President’s “duties, which range from faithfully executing the laws to commanding the
Armed Forces, are of unrivaled gravity and breadth,” and “[q]uite appropriately, those duties come
with protections that safeguard the President’s ability to perform his vital functions.”).
Additionally, “[t]he public looks to the President, as the leader of the Nation, for guidance
and reassurance even on matters over which the Executive Branch—or the federal government as
a whole—has no direct control. From the actions of Congress and the Judiciary, to the policies of
state and local governments, to the conduct of private corporations and individuals, the President
can and must engage with the public on matters of public concern.” Blassingame Amicus Br. at
12. Thus, even where a President’s actions are “directed toward the constitutional responsibilities
of another Branch of government,” or concern “matters for which the President himself bears” no
direct constitutional or statutory responsibility, id. at 11–12, his actions are often still within the
“outer perimeter” of his official duties, see Fitzgerald 457 U.S. at 756.
22Page 29 Without question, the President “occupies a unique office with powers and responsibilities
so vast and important that the public interest demands that he devote his undivided time and
attention to his public duties.” Clinton, 520 U.S. at 697.
As the Supreme Court held, “the higher the post, the broader the range of responsibilities
and duties, and the wider the scope of discretion, it entails.” Barr, 360 U.S. at 573. As the highest
of all posts, the Presidency warrants the broadest possible immunity, id., and acts must fall within
its “outer perimeter” unless clearly established as beyond his duties. See Klayman v. Obama, F. Supp. 3d 67, 86 (D.D.C. 2015) (“Absolute immunity is extended to few officers, and it is denied
only if the officer acts ‘without any colorable claim of authority.’” (quoting Bernard v. Cnty. of
Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (emphasis added)).
B.
The Nature of the Act, Not the Manner in Which It Is Conducted or Its Alleged
Purpose, Determines Whether It Falls Within the Scope of Immunity.
In deciding what conduct falls within the scope of official duties, courts apply an objective
test based on the nature of the act—not the manner in which it was conducted, or any allegedly
malicious purpose.
Thus, “[i]mmunity is not overcome by ‘allegations of bad faith or malice.’ Nor is immunity
defeated by an allegation that the President acted illegally.” Klayman, 125 F. Supp. 3d at (citations omitted) (quoting Barrett v. Harrington, 130 F.3d 246, 254–55 (6th Cir.1997)); accord
Blassingame Amicus Br. at 9–10 (“[A]n inquiry into the President’s motives” to determine
whether a particular action was done in furtherance of a legitimate function or for nefarious reasons
would “be highly intrusive” and would impermissibly “subject the President to trial on virtually
every allegation that an action was unlawful, or was taken for a forbidden purpose.” (quoting
Fitzgerald, 457 U.S. at 756)).
23Page 30 The Supreme Court has repeatedly emphasized this point. See, e.g., Fitzgerald, 457 U.S.
at 74546; Fisher, 80 U.S. at 354 (“The allegation of malicious or corrupt motives could always be
made, and if the motives could be inquired into judges would be subjected to the same vexatious
litigation upon such allegations, whether the motives had or had not any real existence.”);
Spalding, 161 U.S. at 494, 498; Pierson, 386 U.S. at 554; Barr, 360 U.S. at 575 (holding that
immunity applied “despite the allegations of malice in the complaint”).
As Judge Learned Hand’s often-cited analysis of this question states:
The [immunity] decisions have, indeed, always imposed as a
limitation upon the immunity that the official’s act must have been
within the scope of his powers; and it can be argued that official
powers, since they exist only for the public good, never cover
occasions where the public good is not their aim, and hence that to
exercise a power dishonestly is necessarily to overstep its bounds. A
moment’s reflection shows, however, that that cannot be the
meaning of the limitation without defeating the whole doctrine.
What is meant by saying that the officer must be acting within his
power cannot be more than that the occasion must be such as would
have justified the act, if he had been using his power for any of the
purposes on whose account it was vested in him.
Gregoire, 177 F.2d at 581 (Hand, J.) (emphasis added); see also, e.g., Novoselsky v. Brown, F.3d 342, 351–52 (7th Cir. 2016) (“An ‘unworthy purpose’ behind the communication ‘does not
destroy the privilege,’ for immunity would be of little use if it could be defeated by ‘a jury’s
speculation as to motives.’”) (quoting Barr, 360 U.S. at 575); In re Global Crossing, Ltd. Sec.
Litig., 314 F. Supp. 2d 172, 174-75 (S.D.N.Y. 2003) (“The ‘outer perimeter’ of the President’s
‘official responsibility’ would shrink to nothing if a plaintiff, merely by reciting that official acts
were part of an unlawful conspiracy, could have them treated by the courts as ‘unofficial
conduct.’”) (citation omitted).
Nor does a mere allegation that an act was unlawful or otherwise inconsistent with a
particular statutory scheme place it beyond the “outer perimeter” of the President’s official
24Page 31 responsibility. For example, in Fitzgerald, the plaintiff, a federal employee working for the Air
Force, argued that President Nixon exceeded his official responsibilities in unlawfully causing the
plaintiff’s dismissal without adherence to certain statutory processes and protections: “[b]ecause
Congress has granted this legislative protection . . . no federal official could, within the outer
perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard
in prescribed statutory proceedings.” 457 U.S. at 756.
The Supreme Court rejected this argument, holding President Nixon’s general
constitutional and statutory authority to oversee the Air Force placed the nature of his acts
comfortably within the “outer perimeter” of his official conduct, and therefore entitled to absolute
immunity, even if allegedly unlawful. Id. at 756–57 To hold otherwise, the Supreme Court
determined, “would subject the President to trial on virtually every allegation that an action was
unlawful, or was taken for a forbidden purpose” and therefore “deprive absolute immunity of its
intended effect.” Id.; see also Stump v. Sparkman, 435 U.S. at 362 (“[T]he factors determining
whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is
a function normally performed by a judge….”) (emphasis added); Tenney, 341 U.S. at 378.
For the same reasons, alleging that immune acts were part of a conspiracy does not defeat
immunity: “since absolute immunity spares the official any scrutiny of his motives, an allegation
that an act was done pursuant to a conspiracy has no greater effect than an allegation that it was
done in bad faith or with malice, neither of which defeats a claim of absolute immunity.” Dorman
v. Higgins, 821 F.2d 133, 139 (2d Cir. 1987) (collecting cases).
See also Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). “[A]llegations that a
conspiracy produced a certain decision should no more pierce the actor’s immunity than
allegations of bad faith, personal interest or outright malevolence.” Holloway v. Walker, 765 F.2d
517, 522 (5th Cir. 1985) (“It is a well established rule that where a judge’s absolute immunity
25Page 32 Importantly, this recognition of absolute immunity, regardless of internal motivation, does
“not place the President ‘above the law,’” but instead simply clarifies that the remedy for alleged
official misconduct lies, as the Constitution requires, with Congress through impeachment, and
through other informal means. Fitzgerald, 457 U.S. at 757.
C.
Presidential Conduct With Both Official and Private Character Is Immune.
Because of the unique nature of the Presidency, the President’s exercise of his official
responsibilities may have personal ramifications, and vice versa. Indeed, as the Supreme Court has
recognized, it is commonplace for a President’s speech and conduct to have dual roles—both an
official and personal character. “The President is the only person who alone composes a branch of
government. As a result, there is not always a clear line between his personal and official affairs.”
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). Thus, “for any President the line
between official and personal can be both elusive and difficult to discern.” In re Lindsey, 158 F.3d
1263, 1286 (D.C. Cir. 1998) (Tatel, J., concurring in part and dissenting in part). “Because the
Presidency is tied so tightly to the persona of its occupant, … official matters … often have
personal implications for a President.” Id.
The government recently agreed with this point before the D.C. Circuit: “a ‘first-term
President is, in a sense, always a candidate for office,’ and it is ‘not the least bit unusual for firstterm Presidents to comment on public policy or foreign affairs at campaign events, or, in this day,
to announce policy changes by tweet during an election year.’” Blassingame Amicus Br. at (citation omitted).
would protect him from liability for the performance of particular acts, mere allegations that he
performed those acts pursuant to a … conspiracy will not be sufficient to avoid the immunity.”).
26Page 33 For example, “The announcement of a Presidential policy decision at a political rally, or
remarks on foreign policy delivered at a campaign event, cannot categorically be excluded from
the scope of the President’s Office merely because of the context in which they are made.” Id. at
13-14. “And other statements at such events may be understood by members of the public and
domestic and foreign leaders as reflecting the official views of the President, not just the remarks
of a political candidate.” Id. at 14.
For this very reason, it is not “appropriate to frame the immunity question … in terms of
whether the challenged conduct of the President was undertaken with a purpose ‘to secure or
perpetuate incumbency.’” Id. (citation omitted). “The Supreme Court in Nixon [v. Fitzgerald]
emphatically rejected an argument that otherwise-official acts lose immunity if they are motivated
by an impermissible purpose. That logic applies with even greater force to the suggestion that the
President should be subject to suit for his official acts whenever those acts are—or are plausibly
alleged to have been—motivated by electoral or political considerations.” Id. at 14-15 (citation
omitted).
Thus, even if the President’s speech or conduct appears to have a dual character—i.e., both
official and personal (including campaign-related) at the same time—that conduct still lies within
the “outer perimeter” of his official responsibilities and is immune from prosecution.
D.
Every Act Alleged in the Indictment Falls Within the Outer Perimeter of the
President’s Official Duties and Is Immune from Criminal Prosecution.
Applying this objective test, every action of the Defendant alleged in the indictment falls
within the “outer perimeter” of President Trump’s official duties. As an initial matter, every action
of the Defendant charged in the indictment occurred while he was still in office as President of the
United States, and, according to the prosecution, all concerned a federal government function.
Doc. 1. Given the all-consuming nature of the Presidency, these facts alone strongly support the
27Page 34 notion that the indictment is based solely on President Trump’s official acts. See Clinton, 520 U.S.
at 697 (recognizing that the Presidency carries “powers and responsibilities so vast and important”
that they demand “undivided time and attention to … public duties”).
1.
Making public statements, including Tweets, about matters of national
concern is an official action that lies at the heart of Presidential duties.
First, making public statements on matters of public concern—especially where they relate
to a core federal function such as the administration of a federal election—unquestionably falls
within the scope of the President’s official duties. “The President of the United States possesses
an extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii, S. Ct. 2392, 2417-18 (2018). “[S]peech is unquestionably a critical function of the presidency.”
Thompson v. Trump, 590 F. Supp. 3d 46, 79 (D.D.C. 2022). As one scholar of the Presidency has
explained, “Presidents have a duty constantly to defend themselves publicly, to promote policy
initiatives nationwide, and to inspirit the population. And for many, this Presidential ‘function’ is
not one duty among many, but rather the heart of the presidency—its essential task.” JEFFREY K.
TULIS, THE RHETORICAL PRESIDENCY 4 (2017).
In Barr, the Supreme Court held that communicating with the public about matters of
public interest is standard government practice and well within the scope of official duties:
The issuance of press releases was standard agency practice, as it
has become with many governmental agencies in these times. We
think that under these circumstances a publicly expressed statement
of the position of the agency head … was an appropriate exercise of
the discretion which an officer of that rank must possess if the public
service is to function effectively. It would be an unduly restrictive
view of the scope of the duties of a policy-making executive official
to hold that a public statement of agency policy in respect to matters
of wide public interest and concern is not action in the line of duty.
Barr, 360 U.S. at 574-75. Notably, immunity lies even if the official’s public statements are false
and “actuated by malice,” which, of course, President Trump denies. Id. at 568.
28Page 35 This conclusion applies even more strongly to the President. The tradition of Presidents
making public statements on matters of national concern arose in the first days of the Presidency
and encompasses some of the most historic Presidential actions in American History, including
George Washington’s Farewell Address and Abraham Lincoln’s Gettysburg Address. President
Theodore Roosevelt described the Presidency as a “bully pulpit” for advancing policy views on
matters of public concern. When a President speaks to the public on matters of public concern—
especially issues of uniquely federal concern, like federal elections—those statements fall in the
heartland of his or her official duties.
Still today, the government recognizes the statements from the bully pulpit as a
fundamentally Presidential act, entitled to the immunity recognized in Fitzgerald: “The traditional
‘bully pulpit’ of the Presidency … is not limited to speech concerning matters for which the
President bears constitutional or statutory responsibility,” but includes “matters over which the
Executive Branch—or the federal government as a whole—has no direct control.” Id. at 12. “Such
speech is an important traditional function of the Presidency, and it would offend the constitutional
separation-of-powers principles recognized in Nixon [v. Fitzgerald] for courts to superintend the
President’s speech to his constituents and to other officeholders….” Id. The government has taken
the same position in other matters as well. See, e.g., Government’s Application for Stay of
Injunction, Murthy v. Missouri, No. 23A243 (U.S.) (filed Sept. 14, 2023) (U.S. Solicitor General
arguing that “[a] central dimension of Presidential power is the use of the Office’s bully pulpit to
seek to persuade Americans . . . to act in ways that the President believes would advance the public
interest” and “[o]ne of the central duties and prerogatives of the President … is to speak to the
public on matters of public concern, and [he] must have the latitude to do so forcefully at times”).
29Page 36 Moreover, the Supreme Court emphasizes that “[a] government entity has the right to speak
for itself. It is entitled to say what it wishes, and to select the views that it wants to express.”
Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009) (alterations, citations, and quotation
omitted) (citing numerous cases). “[T]he First Amendment does not say that Congress and other
government entities must abridge their own ability to speak freely.” Matal v. Tam, 582 U.S. 218,
234 (2017); see also, e.g., Lynch v. President of the U.S., 2009 WL 2949776, at *1 (N.D. Tex.
Sept. 14, 2009) (“Televised publication of the President’s views on various topical items is within
the outer perimeter of his official duties.”). This doctrine applies all the more to the Presidency.
For the same reasons, posting Tweets on matters of public concern that relate to the
administration of a federal election falls within the heartland of the President’s official duties. A
Tweet is a public statement in a different (and more accessible) forum. The fact that President
Trump most often communicated with the public through Twitter, rather than press releases or
public speeches, is merely a difference of medium, not of function.Although, addressing a different set of allegations, this Court recently concluded that some
of President Trump’s Tweets and public statements relating to the January 6 certification process
did not fall within the outer perimeter of his official duties. Thompson, 590 F. Supp. 3d at 79-84.
In fact, the Second Circuit recently held that President Trump’s Twitter account during his
Presidency was a government-run public forum for speech, and that “the factors pointing to the
public, non–private nature of the Account and its interactive features are overwhelming.” Knight
First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert. granted,
judgment vacated as moot sub nom. Biden v. Knight First Amend. Inst. At Columbia Univ., 141 S.
Ct. 1220 (2021). The Second Circuit stated that President Trump “has stipulated that he … uses
the Account frequently ‘to announce, describe, and defend his policies; to promote his
Administration's legislative agenda; to announce official decisions; to engage with foreign political
leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his
Administration he believes to be unfair.’ In June 2017, then–White House Press Secretary Sean
Spicer stated at a press conference that President Trump’s tweets should be considered ‘official
statements by the President of the United States.’” Id. at 231. The Second Circuit “conclude[d]
that the evidence of the official nature of the Account is overwhelming.” Id. at 234.
30Page 37 However, Thompson addressed a different set of allegations, and is therefore distinguishable from
this case. Regardless, Thompson’s analysis is non-binding and unpersuasive.6 First, Thompson
acknowledged that President Trump’s “pre-January 6th Tweets and the January 6 Rally Speech
addressed matters of public concern: the outcome of the 2020 Presidential Election and election
integrity. Whatever one thinks of the President’s views on those subjects, they plainly were matters
of public concern.” Id. at 79.
The analysis should have ended there, as speaking to the public on matters of public
concern—especially uniquely federal concerns, like a federal election—is not only a
straightforward and long-established Presidential function, but itself “a critical function of the
Presidency.” Id. at 79. Yet the Court, puzzlingly, went on to analyze whether those Tweets “were
spoken in furtherance” of another, entirely separate, Presidential function. Id. at 81.
Thompson’s artificially cramped formulation of the President’s authority to speak
contradicts the much broader historic tradition of Presidential communications on all matters that
affect the Nation. Adopting Thompson’s analysis, for example, would place President Biden’s
recent criticism of the Supreme Court’s opinion in Dobbs, or his regular criticism of Congress and
certain state governments, outside the “outer perimeter” of official duties. This cannot be the case.
Second, Thompson misapplied its own “furtherance of a Presidential function” test.
Thompson acknowledged that the investigation and enforcement of fraud in federal elections is a
core Executive function. Conceding that “enforcing election laws through litigation strikes at the
Other recent district court decisions coming to similar conclusions in the context of President
Trump’s claims of civil immunity are largely consistent with Thompson. See Moore v. Trump, No.
22-CV-00010 (APM), 2022 WL 3904320, at *1 (D.D.C. Aug. 2, 2022); Michigan Welfare Rts.
Org. v. Trump, No. CV 20-3388 (EGS), 2022 WL 17249218, at *4–5 (D.D.C. Nov. 28, 2022);
United States v. Chrestman, 525 F. Supp. 3d 14, 33 (D.D.C. 2021). For ease of reference, this
memorandum discusses Thompson, but its analysis applies to those other decisions as well.
31Page 38 core of the executive branch’s duty to faithfully execute the law,” Thompson held that “[t]he
President can enforce election laws through litigation initiated by the Department of Justice or the
Federal Election Commission, agencies over which he has appointment authority.” Id. at 78. “A
lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the
Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully
executed.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam)).
Here, President Trump’s alleged Tweets and public statements about fraud in the election
and the role of the Vice President in the certification process were directly related to his contentions
that: (1) the Presidential election’s outcome was tainted by fraud and other procedural
irregularities, and (2) the U.S. Department of Justice and certain state governments had failed to
adequately investigate and prosecute fraud and irregularities in the election. By Thompson’s own
logic, therefore, President Trump’s Tweets and public statements were “in furtherance of [a]
Presidential function” under the Take Care Clause—namely, assuring adequate investigation and
enforcement of federal election laws and protecting the integrity of federal elections.
In reaching its conclusion, Thompson repeatedly and erroneously focused on what it
deemed the “purpose” of President Trump’s public statements. Id. at 83. Thompon stated, for
instance, that President Trump’s Tweets were “directed at securing incumbency,” that this was
“the purpose of the January 6 Rally,” that “[t]he clear purpose” of his public statements was “to
help him ‘win,’” and that the January 6 speech “reflect[s] an electoral purpose….” Id. at 82-(emphases added).
But, as explained above, separate from the fact that the allegations regarding intent are
untrue, an allegedly improper purpose for an official act does not rob the act of its official
character—indeed, there is hardly an immunity case without such an allegation. “The claim of an
32Page 39 unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377 (emphasis added). “The
motive that impelled him to do that of which the plaintiff complains is therefore wholly
immaterial.” Spalding, 161 U.S. at 499; see also, e.g., Fitzgerald, 457 U.S. at 745-46; Fisher, U.S. at 350-51; Pierson, 386 U.S. at 554; Barr, 360 U.S. at 575; Klayman, 125 F. Supp. 3d at 87.
2.
Communicating with the U.S. Department of Justice about the
investigation of election fraud and considering replacing the Acting
Attorney General lie at the heart of the President’s official duties.
The President’s alleged meetings and communications with officials at the U.S.
Department of Justice also lie at the heart of his constitutional duties. Article II provides that the
President shall “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. The laws
of the United States include prohibitions against election fraud and other election crimes, which
the Attorney General of the United States—who is appointed by and reports to the President—is
charged with enforcing. See, e.g., 18 U.S.C. §§ 241, 242, 611, 911, 1015(f); 52 U.S.C. §§ 10307(c),
10307(e), 20511(1), 20511(2)(A), 20511(2)(B), 30120, 30124. The Department of Justice
publishes a lengthy manual on the prosecution of federal election crimes, U.S. Dep’t of Justice,
Federal
Prosecution
of
Election
Offenses
(8th
ed.
2017),
at
https://www.justice.gov/criminal/file/1029066/download (visited August 21, 2023), which
provides that “[f]ederal jurisdiction over election fraud is easily established in elections when a
federal candidate is on the ballot.” Id. at 6. The Department of Justice has an entire “Election
Crimes Branch” within the Public Integrity Section that was created in 1980 “to oversee the Justice
Department’s nationwide response to election crimes.” U.S. Dep’t of Justice, Election Crimes
Branch, at https://www.justice.gov/criminal-pin/election-crimes-branch (visited August 21,
2023). The Election Crimes Branch also “consult[s] and support[s] … [state and local] prosecutors
and investigators around the nation.” Id.
33Page 40 In short, it is indisputable that “[t]he President can enforce election laws through litigation
initiated by the Department of Justice or the Federal Election Commission, agencies over which
he has appointment authority.” Thompson, 590 F. Supp. 3d at 78.
Urging his own Department of Justice to do more to enforce the laws that it is charged with
enforcing is unquestionably an official act of the President. “[T]he President may undoubtedly, in
the performance of his constitutional duty, instruct the Attorney General to give his direct personal
attention to legal concerns of the United States elsewhere, when the interests of the Government
seem to the President to require this.” Office & Duties of Attorney General, 6 U.S. Op. Atty. Gen.
326, 335 (1854). “The Attorney General … is the hand of the President in taking care that the laws
of the United States in protection of the interests of the United States in legal proceedings and in
the prosecution of offenses be faithfully executed.” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922).
Deliberating about whether to replace the Acting Attorney General of the United States is
also a core Presidential function. The Appointments Clause of Article II provides that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States….” U.S. CONST. art. II, § 2, cl. 2. This clause also encompasses the
removal power. Myers v. United States, 272 U.S. 52, 122 (1926).
“During the first Congress, James Madison stated that ‘if any power whatsoever is in its
nature executive, it is the power of appointing, overseeing, and controlling those who execute the
laws.’” Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted
a Claim of Executive Privilege, 8 U.S. Op. O.L.C. 101, 113 (1984) (quoting 1 ANNALS
OF
CONGRESS 481 (1789)); see also In re Sealed Case, 121 F.3d 729, 752–53 (D.C. Cir. 1997)
(holding Presidential deliberations about replacing the head of the Department of Agriculture
34Page 41 constituted a core Presidential function: “In this case the documents in question were generated in
the course of advising the President in the exercise of his appointment and removal power, a
quintessential and nondelegable Presidential power. . . . “the President himself must directly
exercise the Presidential power of appointment or removal.”).
Although, mirroring Fitzgerald, the prosecution incorrectly alleges that an improper
purpose motivated President Trump’s thinking regarding the Department of Justice’s staffing, and
its approach to election fraud and irregularities, a President’s purpose or motive is once again
irrelevant to whether his acts fall within the “outer perimeter” of his responsibilities. Fitzgerald,
457 U.S. at 756.
3.
Meeting with state officials about the administration of a federal
election lies at the heart of the President’s official duties.
Next, meeting with state officials about the administration of a federal election in their
States, and urging them to exercise their official duties with respect to the federal election in a
certain way, constitutes another core exercise of Presidential responsibility.
The Supreme Court long ago rejected the notion that the President’s Take Care duty is
“limited to the enforcement of acts of congress or of treaties of the United States according to their
express terms,” and held that this duty “include[s] the rights, duties, and obligations growing out
of the constitution itself, our international relations, and all the protection implied by the nature of
the government under the constitution.” Cunningham v. Neagle, 135 U.S. 1, 64 (1890).
Ensuring the integrity of federal elections and urging state officials to take steps to ensure
the fairness and integrity of federal elections fall within “the rights, duties, and obligations growing
out of the constitution itself … and all the protection implied by the nature of the government
under the constitution.” Id. Fitzgerald, likewise, rejected the notion that the “outer perimeter” of
the President’s official responsibilities should be identified by parsing specific “functions” of the
35Page 42 Presidency, holding that “[i]n many cases it would be difficult to determine which of the
President’s innumerable ‘functions’ encompassed a particular action,” and that the “functional”
approach “could be highly intrusive.” 457 U.S. at 756.
Ensuring the integrity of federal elections falls within the President’s official duty. “While
Presidential electors are not officers or agents of the federal government, they exercise federal
functions under, and discharge duties in virtue of authority conferred by, the Constitution of the
United States.” Burroughs v. United States, 290 U.S. 534, 545 (1934); see also Anderson v.
Celebrezze, 460 U.S. 780, 794-95 (1983) (discussing the “uniquely important national interest” in
Presidential elections). Recognizing the strong federal interest in elections, the current
Administration has issued a sweeping executive order directing all federal agencies to interface
with state and local officials to promote election integrity and ballot access. Exec. Order 14019,
Promoting Access to Voting, 86 Fed. Reg. 13623-27.
Similarly, taking steps to ensure that fraud and other irregularities do not vitiate the
outcome of a federal election also falls within the President’s responsibility. For example, federal
election law criminalizes preparing “false ballots, plac[ing] them in the box, and return[ing] them”
because that prevents “an honest count ... of the votes lawfully cast.” United States v. Saylor, U.S. 385, 389 (1944). The Constitution also guarantees equal treatment of voters in federal
elections and protects them from arbitrary interference with their voting rights. Bush v. Gore, U.S. 98, 104–05 (2000). Communicating with state officials to ensure “an honest count … of the
votes lawfully cast” in a federal election, Saylor, 322 U.S. at 389, thus effectuates federal rights
and flows directly from the President’s Take Care power, see Neagle, 135 U.S. at 59.
Further, the indictment alleges that the President communicated with state officials, argued
that election fraud occurred, urged them to conduct their own investigations of election fraud and
36Page 43 irregularities, and to take steps to address those issues. Those are just the sorts of communications
that one would expect the Department of Justice to make if it had investigated and concluded that
there was election fraud in the relevant States. As noted above, the Election Crimes Branch of DOJ
“consult[s] and support[s] … prosecutors and investigators around the nation.” U.S. Dep’t of
Justice, Election Crimes Branch, supra. DOJ’s authority is not greater than the President’s here;
Article II “makes a single President responsible for the actions of the Executive Branch.” Free
Enter. Fund, 561 U.S. at 496-97 (quoting Clinton, 520 U.S. at 712-13 (Breyer, J., concurring in
judgment)). The President thus has the authority and obligation to communicate his concerns about
alleged fraud in federal elections to the relevant state authorities—a function at the heart of the
President’s constitutional role.
Again, the Department of Justice has recently come to the same conclusion—concluding
that communicating with state officials about their exercise of official duties with respect to a
federal election falls within the scope of the President’s official duties: “Such speech is an
important traditional function of the Presidency, and it would offend the constitutional separationof-powers principles recognized in Nixon [v. Fitzgerald] for courts to superintend the President’s
speech to his constituents and to other officeholders … merely because it concerns the conduct of
a coordinate Branch or an entity outside the federal government.” Blassingame Amicus Br. (citing Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 665 (D.C. Cir. 2006))
(emphases added).
Aware that, as a general matter, a President may communicate with federal election
officials regarding election integrity concerns, the prosecution here attempts to side-step the issue
by falsely alleging President Trump did not really believe there were outcome-determinative issues
with the election. However, probing President Trump’s internal beliefs, again, are questions of
37Page 44 motive or purpose that cannot defeat immunity, elsewise the President would be “subject . . . to
trial on virtually every allegation that an action was unlawful, or was taken for a forbidden
purpose.” Fitzgerald, 457 U.S. at 756.
Last, although Thompson came to a different conclusion about the scope of the Take Care
responsibility, 590 F. Supp. 3d at 77-78, its analysis is unpersuasive. Thompson reasoned that “a
sitting President has no expressly identified duty to faithfully execute the laws surrounding the
Certification of the Electoral College.” 590 F. Supp. 3d at 78. This is wrong for several reasons.
First, by requiring the President to show an “expressly identified duty,” id. (emphasis added),
Thompson adopted the very standard that the Supreme Court rejected in Neagle, i.e., as “limited
to the enforcement of acts of congress or of treaties of the United States according to their express
terms.” 135 U.S. at 64 (emphasis added).
On the contrary, the President’s Take Care role “include[s] the rights, duties, and
obligations growing out of the constitution itself … and all the protection implied by the nature of
the government under the constitution.” Id. This includes taking steps to prevent the certification
of a federal election tainted by fraud—even if those steps are limited to encouraging other state
and federal officials to exercise their responsibilities a certain way where the President allegedly
has no direct role. Thompson likewise contravened the Supreme Court’s guidance in Fitzgerald
that the scope of Presidential immunity should not be determined by parsing the specific
“functions” of the President and demanding that immunity be closely linked to a specific function.
Second, even if the Take Care duty were limited to the “express terms” of federal statutes,
Thompson overlooked the direct connection between the President’s duty to enforce federal
statutes that safeguard the integrity of federal elections, and his communications with state officials
about that very issue. If the President or DOJ concludes that significant fraud occurred in the
38Page 45 administration of a federal election, the Take Care Clause does not require them to keep that
information to themselves. Rather, it authorizes them to report that conclusion to state (and other
federal) officials and to urge them to act accordingly. Thompson concluded that “merely exhorting
non-Executive Branch officials to act in a certain way” is not “a responsibility within the scope of
the Take Care Clause.” 590 F. Supp. 3d at 78. That is wrong. But even if that were so, when
“exhorting non-Executive Branch officials to act in a certain way” addresses core federal interests
and effectuates and protects rights conferred by federal statutes, it falls within the President’s
responsibilities.
Third, Thompson’s conclusion that “[t]he President’s Take Care Clause duty … does not
extend to government officials over whom he has no power or control,” id. at 78, proves far too
much. That formulation entails that the President’s urging the Supreme Court to rule a certain way
in a case to which the United States is not a party—for example, in an amicus brief filed by the
Solicitor General—is a purely private action outside the “outer perimeter” of Executive
responsibility, simply because the President has “no power or control” over Article III judges. Id.
That is illogical. Rather, the Take Care duty must extend to exhorting other officials to exercise
their responsibilities in a manner consistent with the President’s view of the public good—
especially when the issue affects the civil rights of millions of federal voters and addresses a
“bedrock function of the United States federal government.” Doc. 1, at 2.
4.
Communicating with the President of the Senate and other Members
of Congress about the exercise of their official duties regarding federal
election certification lies at the heart of the President’s official duties.
President Trump’s communications with the Vice President in his legislative role as
President of the Senate and with other Members of Congress about the exercise of their official
duties with respect to the election certification also fall at the heart of the President’s official
39Page 46 responsibility. Presidents routinely communicate with Congress to provide information and urge
them to act, and this conduct is among the most deeply rooted traditions of Presidential authority.
First, President Trump’s direct communications with the Vice President—in his legislative
role as “President of the Senate,” Doc. 1, ¶¶ 9, 53—were central to his official responsibilities.
The Constitution assigns the President extensive roles in the legislative process. Article I, § 7,
clause 2 confers on the President the veto power over bills. Clause 3 of the same section confers
on the President the veto power over joint resolutions. Article II provides that the President “shall
from time to time give to the Congress Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge necessary and expedient.” U.S. CONST. art.
II, § 3 (emphasis added). Article II, § 3 also provides that the President “may, on extraordinary
Occasions, convene both Houses, or either of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think
proper….” Id.
Particularly relevant here, the President’s authority to “recommend to [Congress’s]
Consideration such Measures as he shall judge necessary and expedient,” id., encompasses the
President’s authority to provide information to legislators and urge them to take specific actions:
It is equally necessary for the executive branch of Government to be
able to make its views known to Congress on all matters in which it
has responsibilities, duties, and opinions. The executive agencies
have a definite requirement to express views to Congress, to make
suggestions, to request needed legislation, to draft proposed bills or
amendments, and so on…. [E]xecutive agencies have the right and
responsibility to seek to ‘influence, encourage, promote or retard
legislation’ in many clear and proper—and often extremely
effective—respects….
Legislative Activities of Executive Agencies: Hearings Before the H. Select Comm. On Lobbying
Activities, 81st Cong., pt. 10, at 2 (1950), quoted in Lobbying by Executive Branch Personnel, U.S.
40Page 47 Op. O.L.C. Supp. 240, 243-44 (1961), at https://www.justice.gov/d9/olc/opinions/1961/10/31/opolc-supp-v001-p0240_0.pdf (visited August 22, 2023) (“1961 O.L.C. Op.”). “[I]n furtherance of
basic responsibilities[,] the executive branch and particularly the Chief Executive and his official
family of departmental and agency heads” are authorized to “inform and consult with the Congress
on legislative considerations, draft bills and urge in messages, speeches, reports, committee
testimony and by direct contact the passage or defeat of various measures.” H.R. Rep. No. 813138, at 52 (quoted in 1961 O.L.C. Op. at 244).
The Executive Branch endorsed these statements in 1961: “the participation of the
President in the legislative function is based on the Constitution.” 1961 O.L.C. Op. at 245. “It was
the intention of the Fathers of the Republic that the President should be an active power in
legislation .... He is made by the Constitution an important part of the legislative mechanism of
our government.” Id. (square brackets omitted) (quoting Thomas J. Norton, The Constitution of
the United States: Its Sources and Its Application 123 (special ed. 1940, 8th printing 1943)).
“The President’s right, even duty, to propose detailed legislation to Congress touching
every problem of American society, and then to speed its passage down the legislative transmission
belt, is now an accepted usage of our constitutional system.” Id. (quoting Clinton Rossiter, The
American Presidency 108 (2d rev. ed. 1960)). “This constitutionally established role in the
legislative process has become so vital through the years that the President has been aptly termed
the Chief Legislator.” Id. (citing, inter alia, Lawrence H. Chamberlain, The President, Congress
and Legislation 14 (1946)).
Here, the indictment alleges that President Trump urged both the Vice President—in his
legislative capacity as President of the Senate—and Members of Congress to exercise their
authority in the election-certification proceedings consistent with what President Trump urged was
41Page 48 the public good. This conduct is manifestly part of the President’s responsibilities in our
constitutional tradition, and the question whether the President has a formal role in the electioncertification process makes no difference. As the Department of Justice recently put it, “a President
acts within the scope of his office when he urges Members of Congress to act in a particular way
with respect to a given legislative matter—even a matter, such as a congressional investigation, in
which the President has no constitutional role.” Blassingame Amicus Br. 11 (emphasis added).
In fact, there is direct historical precedent for a sitting President communicating with
Members of Congress about alleged election fraud relating to the certification of a disputed
election involving rival slates of electors. In the wake of the 1876 election, President Grant
discussed the electoral count and claims of fraud with a member of the U.S. House. See 28 THE
PAPERS
OF
ULYSSES
S.
GRANT
80–
(ed.
John
Y.
Simon
2005),
at
https://scholarsjunction.msstate.edu/usg-volumes/27/ (visited August 22, 2023). Likewise,
President Grant transmitted to Congress a letter he received from an observer (a U.S. Senator)
whom he had requested to go to New Orleans and witness the counting of votes. Id. at 75-78.
President Grant also dispatched federal troops to Louisiana and Florida to prevent violence while
Republican-controlled election boards counted votes, and he instructed the federal troops to report
fraud in the election. See id. at 19-20. These acts, just like President Trump’s, were Presidential.
5.
Allegedly organizing contingent slates of electors falls within the
President’s official duties.
The indictment alleges that President Trump directed or approved other individuals to
organize contingent slates of electors in disputed States. Doc. 1, ¶¶ 53-69. The indictment clearly
alleges that these actions were part and parcel of President Trump’s alleged attempts to convince
the Vice President and Members of Congress to exercise their official authority in his favor on
January 6. Id. ¶ 10(b) (alleging that the contingent electors were “to transmit their false certificates
42Page 49 to the Vice President and other government officials to be counted at the certification proceeding
on January 6”); id. ¶ 53 (alleging that “the submission of these fraudulent slates [of electors] would
create a fake controversy at the certification proceeding and position the Vice President—presiding
on January 6 as the President of the Senate—to supplant legitimate electors with the Defendant’s
fake electors and certify the Defendant as President”). The contingent electors’ role, the indictment
alleges, was to allow President Trump to convince the Vice President and other Members of
Congress to reject or delay the certification of certain electoral votes. See id. ¶ 86 (alleging that
President Trump attempted “to convince the Vice President to accept the Defendant’s [supposedly]
fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state
legislatures for review rather than count them”); see also id. ¶¶ 88, 89, 90, 91, 92, 93, 95, 101, (repeatedly alleging that the slates of electors were used to attempt to convince the Vice President
to reject or delay the certification).
These actions fall within the President’s official responsibilities for at least two reasons.
First, as noted above, the “outer perimeter” of the President’s official responsibilities “include[s]
the rights, duties, and obligations growing out of the constitution itself … and all the protection
implied by the nature of the government under the constitution.” Neagle, 135 U.S. at 64. The
Constitution explicitly provides for Presidential electors and delineates their role. U.S. CONST. art.
II, §1, cl. 2. “While Presidential electors are not officers or agents of the federal government, they
exercise federal functions under, and discharge duties in virtue of authority conferred by, the
Constitution of the United States.” Burroughs, 290 U.S. at 545. Indeed, the indictment itself
describes the selection of Presidential electors as an integral part of “a bedrock function of the
United States federal government: the nation’s process of collecting, counting, and certifying the
results of the Presidential election.” Doc. 1, ¶ 4 (indictment); see also id. ¶ 9.
43Page 50 Organizing slates of electors, therefore, relates directly to “the rights, duties, and
obligations growing out of the constitution itself,” Neagle, 135 U.S. at 64, and thus to the
President’s responsibilities. Without contingent slates of electors, there would be no alternative
option for the Vice President to certify, rendering futile the President’s entirely legitimate efforts
to urge Congress and the states to reconsider evidence of fraud and irregularities. Organization of
the slates of electors, in other words, advances two core Presidential functions—protecting the
integrity of federal elections, and urging Members of Congress to act in a manner consistent with
the President’s view of the public good. Thus, these actions clearly lie within the “outer perimeter”
of the President’s “official responsibilities.” Fitzgerald, 457 U.S. at 756.Second, as the indictment itself emphasizes, the actions of organizing slates of electors
were ancillary and preparatory to the acts of communicating with the Vice President and other
Members of Congress and urging them to exercise their official responsibilities a certain way—
which are themselves core exercises of Presidential responsibility.
Acts that are intertwined with immune actions are themselves immune from liability. For
example, it is widely accepted that “[a]bsolute prosecutorial immunity will … attach to
administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal
prosecution.” Prince v. Hicks, 198 F.3d 607, 612 (6th Cir. 1999) (quoting Ireland v. Tunis, F.3d 1435, 1447 (6th Cir. 1997)); see also, e.g., Guzman–Rivera v. Rivera–Cruz, 55 F.3d 26, (1st Cir. 1995) (“[A]bsolute immunity may attach even to ... administrative or investigative
Nor were such actions unprecedented. Quite the opposite, at the time of the alleged conduct, the
Electoral Count Act did not prohibit organizing contingent slates of electors, and such electors had
been organized previously in the disputed elections of 1876 and 1960—including, in the former
case, with the support of the sitting President. This was thus not a situation where “the President
takes measures incompatible with the express or implied will of Congress,” but a situation where
the President was acting in an area of “independent Presidential responsibility.” Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
44Page 51 activities when these functions are necessary so that a prosecutor may fulfill his function as an
officer of the court.”) (quoting Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir.
1991)). “[T]he Supreme Court has recognized that some duties prior to the initiation of a
prosecution are also protected. Preparing to initiate a prosecution may necessitate obtaining,
reviewing and evaluating evidence; absolute immunity may attach when these functions are
necessary so that a prosecutor may fulfill his function as an officer of the court.” Snell v. Tunnell,
920 F.2d 673, 693 (10th Cir. 1990) (citing Imbler, 424 U.S. at 431 n.33). Thus, a prosecutor “who
performs functions within the continuum of initiating and presenting a criminal case … ordinarily
will be entitled to absolute immunity.” Id. So too here. President Trump’s alleged acts regarding
the contingent slates of electors “perform[ed] within the continuum” of his other immune acts, id.,
such as communicating with Congress, are also immune.
***
For these reasons, the acts alleged in the indictment lie firmly within the “outer perimeter”
of the President’s official responsibility. Therefore, they cannot form the basis of criminal charges
against President Trump.CONCLUSION
The Court should dismiss the indictment, with prejudice, on grounds of Presidential
immunity.
The indictment also alleges that President Trump filed lawsuits challenging the election outcome.
Doc. 1, ¶¶ 20, 30. Yet the indictment proclaims that it is not directly relying on such actions. Doc.
1, ¶ 3 (admitting that President Trump “was also entitled to formally challenge the results of the
election through lawful and appropriate means, such as by seeking recounts or audits of the popular
vote in states or filing lawsuits challenging ballots and procedures”) (emphasis added).
Accordingly, these are included only as acts in furtherance of the supposed conspiracy, which are
immune from prosecution for the reasons just stated, regardless of whether such lawsuits were
filed in a personal or official capacity. Moreover, the act of filing lawsuits alone, without more, is
manifestly insufficient to support any charge in the indictment.
45Page 52 Dated: October 5,
Respectfully submitted,
Todd Blanche, Esq. (PHV)
toddblanche@blanchelaw.com
BLANCHE LAW
99 Wall St., Suite New York, NY (212) 716-
/s/John F. Lauro
John F. Lauro, Esq.
D.C. Bar No. jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
Filzah I. Pavalon, Esq. (PHV)
fpavalon@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL (813) 222-Counsel for President Trump
CERTIFICATE OF CONFERRAL
Counsel for President Trump conferred with counsel for the prosecution, who advise the
government opposes the relief requested herein.
46
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PlainSite Cover Page
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Case 1:23-cr-00257-TSC Document 74 Filed 10/05/23 Page 1 of 52
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA
v.
DONALD J. TRUMP,
Defendant.
Case No. 1:23-cr-00257-TSC
MOTION TO DISMISS INDICTMENT
BASED ON PRESIDENTIAL IMMUNITY
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iv
President Trump moves to dismiss the indictment in this matter, with prejudice, based on
Presential immunity. In support, President Trump states as follows. ............................................. 1
INTRODUCTION .......................................................................................................................... 1
LEGAL STANDARD ..................................................................................................................... 2
ALLEGATIONS IN THE INDICTMENT ..................................................................................... 2
A. Public Statements and Tweets About the Federal Election and Certification. .................... 3
B. Communications with the U.S. Department of Justice About Investigating Election
Crimes and Possibly Appointing a New Acting Attorney General. ............................................ 4
C. Communications with State Officials About the Federal Election and the Exercise of
Their Official Duties with Respect to the Election. .................................................................... 6
D. Communications with the Vice President and Members of Congress About the Exercise of
Their Official Duties in the Election-Certification Proceedings. ................................................ 6
E. Organizing Slates of Electors as Part of the Attempt to Convince Legislators Not to
Certify the Election Against Defendant. ..................................................................................... 7
ARGUMENT .................................................................................................................................. 8
I. The President Has Absolute Immunity from Criminal Prosecution for Actions Performed
Within the “Outer Perimeter” of His Official Responsibility. .................................................... 8
A. The Doctrine of Separation of Powers and the President’s Unique Role in Our
Constitutional Structure Require Immunity from Criminal Prosecution................................. 8
B. Impeachment and Conviction by the Senate Provide the Exclusive Method of
Proceeding Against a President for Crimes in Office............................................................ 11
C. Early Authorities Support Presidential Immunity from Criminal Prosecution. ............. 13
D. Two Hundred Thirty-Four Years of History and Tradition Support Presidential
Immunity from Criminal Prosecution.................................................................................... 15
E. Analogous Immunity Doctrines Support Presidential Immunity from Criminal
Prosecution. ........................................................................................................................... 16
F.
Concerns of Public Policy Favor the President’s Immunity from Prosecution.............. 18
II. The Indictment Alleges Only Acts Committed Within the Outer Perimeter of the
President’s Official Responsibilities, Which Are Shielded by Absolute Immunity. ................ 21
A. The Scope of Criminal Immunity Includes All Actions That Fall Within the “Outer
Perimeter” of the President’s Official Duties. ....................................................................... 21
ii
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B. The Nature of the Act, Not the Manner in Which It Is Conducted or Its Alleged
Purpose, Determines Whether It Falls Within the Scope of Immunity. ................................ 23
D. Every Act Alleged in the Indictment Falls Within the Outer Perimeter of the President’s
Official Duties and Is Immune from Criminal Prosecution. ................................................. 27
CONCLUSION ............................................................................................................................. 45
iii
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TABLE OF AUTHORITIES
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983) .............................................................................. 36
Barr v. Matteo, 360 U.S. 564 (1959) ...................................................... 1, 8, 19, 20, 23, 24, 28, 33
Barrett v. Harrington, 130 F.3d 246 (6th Cir.1997) ..................................................................... 23
Bernard v. Cnty. of Suffolk, 356 F.3d 495 (2d Cir. 2004) ............................................................. 23
Buckley v. Valeo, 424 U.S. 1 (1976) ............................................................................................. 32
Burroughs v. United States, 290 U.S. 534 (1934) .................................................................. 36, 43
Butz v. Economou, 438 U.S. 478 (1978) ................................................................................. 16, 20
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367 (2004) ............................................................... 20
Clinton v. Jones, 520 U.S. 681 (1997) .................................................................. 12, 22, 23, 28, 37
Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949) .................................................. 8
Cunningham v. Neagle, 135 U.S. 1 (1890) ................................................................. 35, 36, 38, 43
Dorman v. Higgins, 821 F.2d 133 (2d Cir. 1987) ......................................................................... 25
Ferri v. Ackerman, 444 U.S. 193 (1979) ........................................................................................ 9
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477 (2010)............... 16, 22, 37
Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949) .................................................................... 19, 24
Guzman–Rivera v. Rivera–Cruz, 55 F.3d 26 (1st Cir. 1995)........................................................ 44
In re Global Crossing, Ltd. Sec. Litig., 314 F. Supp. 2d 172 (S.D.N.Y. 2003) ............................ 24
In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) ........................................................................ 34
Ireland v. Tunis, 113 F.3d 1435 (6th Cir. 1997) ........................................................................... 44
Klayman v. Obama, 125 F. Supp. 3d 67 (D.D.C. 2015) ......................................................... 23, 33
Knight First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019)................. 30
Lynch v. President of the U.S., 2009 WL 2949776 (N.D. Tex. Sept. 14, 2009) ........................... 30
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803)............................................................... 13, 14
Martin v. Mott, 25 U.S. (12 Wheat.) 19 (1827) ............................................................................ 15
Matal v. Tam, 582 U.S. 218 (2017) .............................................................................................. 30
Michigan Welfare Rts. Org. v. Trump, No. CV 20-3388 (EGS), 2022 WL 17249218 (D.D.C.
Nov. 28, 2022)........................................................................................................................... 31
Midland Asphalt Corp. v. United States, 489 U.S. 794 (1989) ...................................................... 2
Moore v. Trump, No. 22-CV-00010 (APM), 2022 WL 3904320 (D.D.C. Aug. 2, 2022) ............ 31
Morrison v. Olson, 487 U.S. 654 (1988) ...................................................................................... 11
Myers v. United States, 272 U.S. 52 (1926).................................................................................. 34
NFIB v. OSHA, 142 S. Ct. 661 (2022) .......................................................................................... 15
Nixon v. Fitzgerald, 457 U.S. 731 (1982) 1, 8, 9, 10, 13, 15, 16, 17, 18, 19, 21, 22, 24, 25, 26, 33,
44
Novoselsky v. Brown, 822 F.3d 342 (7th Cir. 2016) ..................................................................... 24
Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484 (10th Cir. 1991) .............................................. 45
Pierson v. Ray, 386 U.S. 547 (1967) ............................................................................ 9, 17, 24, 33
Pleasant Grove City v. Summum, 555 U.S. 460 (2009)................................................................ 30
Ponzi v. Fessenden, 258 U.S. 254 (1922) ..................................................................................... 34
iv
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Prince v. Hicks, 198 F.3d 607 (6th Cir. 1999) .............................................................................. 44
Printz v. United States, 521 U.S. 898 (1997) ................................................................................ 16
Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020) ......................................................................... 16
Snell v. Tunnell, 920 F.2d 673 (10th Cir. 1990) ........................................................................... 45
Spalding v. Vilas, 161 U.S. 483 (1896)................................................................. 17, 19, 20, 24, 33
Stump v. Sparkman, 435 U.S. 349 (1978) ............................................................................... 18, 25
Tenney v. Brandhove, 341 U.S. 367 (1951) ................................................................ 15, 16, 25, 33
Thompson v. Trump, 590 F. Supp. 3d 46 (D.D.C. 2022) .......................... 28, 30, 31, 32, 34, 38, 39
Trump v. Hawaii, 138 S. Ct. 2392 (2018) ..................................................................................... 28
Trump v. Vance, 140 S. Ct. 2412 (2020) .............................................................. 12, 19, 20, 21, 22
U.S. CONST. art. II, § 3 .................................................................................................. 1, 22, 33, 40
United States v. Chaplin, 54 F. Supp. 926 (S.D. Cal. 1944)......................................................... 17
United States v. Chrestman, 525 F. Supp. 3d 14 (D.D.C. 2021) .................................................. 31
United States v. Nixon, 418 U.S. 683 (1974) .......................................................................... 10, 11
United States v. Saylor, 322 U.S. 385 (1944) ............................................................................... 36
United States v. Sunia, 643 F. Supp. 2d 51 (D.D.C. 2009) ............................................................. 2
United States v. Weeks, 636 F. Supp. 3d 117 (D.D.C. 2022).......................................................... 2
Yates v. Lansing, 5 Johns. 282 (N.Y. 1810) .................................................................................. 17
Statutes
18 U.S.C. § 1015 ........................................................................................................................... 33
18 U.S.C. § 241 ............................................................................................................................. 33
18 U.S.C. § 242 ............................................................................................................................. 33
18 U.S.C. § 611 ............................................................................................................................. 33
18 U.S.C. § 911 ............................................................................................................................. 33
52 U.S.C. § 10307 ......................................................................................................................... 33
52 U.S.C. § 20511 ......................................................................................................................... 33
52 U.S.C. § 30120 ......................................................................................................................... 33
52 U.S.C. § 30124 ......................................................................................................................... 33
Other Authorities
1 ANNALS OF CONGRESS 481 (1789) ............................................................................................. 34
2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863) .................................. 12
28 THE PAPERS OF ULYSSES S. GRANT (ed. John Y. Simon 2005) ............................................... 42
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, § 1563 (1833)
................................................................................................................................................... 14
6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW (2d ed. 1937) ................................................. 17
77 Eng. Rep. 1307......................................................................................................................... 17
Clinton Rossiter, The American Presidency (2d rev. ed. 1960).................................................... 41
H. RES. 24 (117th Cong. 1st Sess.) ............................................................................................... 13
H.R. Rep. No. 81-3138 ................................................................................................................. 41
J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980 DUKE L.J.
879 ............................................................................................................................................. 17
v
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Lawrence H. Chamberlain, The President, Congress and Legislation (1946) ............................ 41
Legislative Activities of Executive Agencies: Hearings Before the H. Select Comm. on Lobbying
Activities, 81st Cong., pt. 10 (1950) ........................................................................................... 40
Lobbying by Executive Branch Personnel, U.S. Op. O.L.C. Supp. 240 (1961) ..................... 40, 41
Office & Duties of Attorney General, 6 U.S. Op. Atty. Gen. 326 (1854) ..................................... 34
Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted a
Claim of Executive Privilege, 8 U.S. Op. O.L.C. 101 (1984) ................................................... 34
SCALIA & GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, § 10 (2012) .......... 12
THE FEDERALIST No. 43 (J. Madison) .......................................................................................... 12
THE FEDERALIST No. 65 (A. Hamilton) ........................................................................................ 12
THE FEDERALIST No. 69 (C. Rossiter ed. 1961) ........................................................................... 12
THE FEDERALIST No. 77 (A. Hamilton) ........................................................................................ 12
Thomas J. Norton, The Constitution of the United States: Its Sources and Its Application (special
ed. 1940, 8th printing 1943) ...................................................................................................... 41
U.S. Dep’t of Justice, Election Crimes Branch ...................................................................... 33, 37
U.S. Dep’t of Justice, Federal Prosecution of Election Offenses (8th ed. 2017) ......................... 33
Constitutional Provisions
U.S. CONST. art. I, § 3, cl. 7 .............................................................................................. 11, 12, 13
U.S. CONST. art. II, § 1 .............................................................................................................. 9, 22
U.S. CONST. art. II, § 2, cl. 2 ......................................................................................................... 34
U.S. CONST. art. II, §1, cl. 2 .......................................................................................................... 43
vi
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President Trump moves to dismiss the indictment in this matter, with prejudice, based on
Presidential immunity. In support, President Trump states as follows.
INTRODUCTION
The President of the United States sits at the heart of our system of government. He is our
Nation’s leader, our head of state, and our head of government. As such, the founders tasked the
President—and the President alone—with the sacred obligation of “tak[ing] Care that the Laws be
faithfully executed.” U.S. CONST. art. II, § 3.
To ensure the President may serve unhesitatingly, without fear that his political opponents
may one day prosecute him for decisions they dislike, the law provides absolute immunity “for
acts within the ‘outer perimeter’ of [the President’s] official responsibility.” Nixon v. Fitzgerald
457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959) (plurality opinion)).
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. 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. 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. Rather, where, as here, the President’s actions are within
the ambit of his office, he is absolutely immune from prosecution. Spalding v. Vilas, 161 U.S. 483,
494, 949 (1896) (“The ‘allegation of malicious or corrupt motives’ does not affect a public
official’s immunity and “[t]he motive that impelled [the official] to do that of which the plaintiff
1
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complains is … wholly immaterial.”). Therefore, the Court should dismiss the indictment, with
prejudice. Midland Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) (“Dismissal of the
indictment is the proper sanction when a defendant has been granted immunity from
prosecution…”) (citation omitted).
LEGAL STANDARD
“In ruling on a motion to dismiss for failure to state an offense, a district court is” typically
“limited to reviewing the face of the indictment and, more specifically, the language used to charge
the crimes.” United States v. Sunia, 643 F. Supp. 2d 51, 60 (D.D.C. 2009) (emphasis omitted).
“When considering a motion to dismiss, the court must review the face of the indictment,” and
“the indictment must be viewed as a whole and the allegations must be accepted as true at this
stage of the proceedings.” United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
ALLEGATIONS IN THE INDICTMENT
President Trump (the incumbent administration’s leading opponent in the upcoming
Presidential election) emphatically denies the truth of any allegations in the indictment. Rather,
this memorandum sets forth the facts alleged in the indictment so that their legal sufficiency may
be assessed for a motion to dismiss. Id. Moreover, the Supreme Court has “repeatedly … stressed
the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter
v. Bryant, 502 U.S. 224, 227 (1991) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Davis
v. Scherer, 468 U.S. 183, 195 (1984); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); Malley v.
Briggs, 475 U.S. 335, 341 (1986); Anderson v. Creighton, 483 U.S. 635, 646, n.6 (1987)); and
Pearson v. Callahan, 555 U.S. 223, 232 (2009)). Accordingly, this motion addresses only the
question of Presidential immunity. Other fatal deficiencies in the indictment will be addressed in
future motion(s) and proceeding(s).
2
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The indictment alleges that President Trump took a series of actions that form the basis of
its charges. These acts fall into five basic categories. The indictment alleges that President Trump,
while he was still President: (1) made public statements about the administration of the federal
election, and posted Tweets about the administration of the federal election; (2) communicated
with senior Department of Justice (“DOJ”) officials about investigating election fraud and about
choosing the leadership of DOJ; (3) communicated with state officials about the administration of
the federal election and their exercise of official duties with respect to it; (4) communicated with
the Vice President, in his legislative capacity as President of the Senate, and with other Members
of Congress about the exercise of their official duties regarding the election certification; and (5)
authorized or directed others to organize contingent slates of electors in furtherance of his attempts
to convince the Vice President to exercise his official authority in a manner advocated for by
President Trump.1
A.
Public Statements and Tweets About the Federal Election and Certification.
First, the indictment alleges that President Trump, while he was still President, made public
statements about the administration of the 2020 federal election. See Doc. 1, ¶ 2 (alleging public
statements claiming fraud in the administration of the federal election); id. ¶¶ 11-12 (alleging a
series of public statements claiming fraud in the federal election); id. ¶ 19 (public statement about
election fraud in Arizona); id. ¶ 32 (public statement regarding Georgia’s election administration);
id. ¶ 33 (public statement about fraudulent voting in Georgia); id. ¶ 34 (public statement suggesting
fraudulent voting in Detroit); id. ¶ 37 (public statement about suspected election fraud in
Michigan); id. ¶ 41 (public statement about election fraud in Michigan); id. ¶ 42 (public statement
1
In certain cases, the indictment does not specify whether President Trump had direct involvement
in many of these actions or even knew they were occurring; but even assuming that he did, the acts
alleged are all still of a public character.
3
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disputing a Pennsylvania local official’s public statement about the absence of fraud in
Philadelphia); id. ¶ 46 (public statement claiming election fraud in Pennsylvania); id. ¶ 52 (public
statement about election fraud in Wisconsin); id. ¶ 99 (public statement about the scope of the
Vice President’s authority on January 6); id. ¶ 102 (public statement in speech about the scope of
the Vice President’s authority on January 6); id. ¶ 104 (statements in public speech on January 6
about election fraud, the scope of the Vice President’s authority, the authority of state officials,
and the certification proceedings).
Closely related to the allegations of public statements, the indictment alleges that President
Trump posted a series of Tweets about the administration of the federal election and its
certification. Id. ¶¶ 22, 28 (Tweet addressing evidence of election fraud in Georgia); id. ¶ 44
(Tweet criticizing Pennsylvania legislators’ claim about slates of electors); id. ¶ 50 (Tweet
addressing election fraud in Wisconsin); id. ¶¶ 87, 90(c) (Tweets urging Americans to protest fraud
in the federal election); id. ¶ 88 (Tweet regarding the Vice President’s authority regarding electioncertification proceedings); id. ¶ 96(a)-(b) (Tweets regarding the Vice President’s electioncertification authority and encouraging Americans to protest election fraud); id. ¶ 96(c) (Tweet
announcing public speech about the election); id. ¶ 100(a)-(b) (Tweets about the Vice President’s
authority); id. ¶ 111 (Tweet about the scope of the Vice President’s authority); id. ¶114 (Tweets
urging protestors to “Stay peaceful!” and “to remain peaceful. No violence!”); id. ¶ 116 (Tweet of
a video claiming fraud in the federal election); id. ¶ 118 (Tweet claiming fraud in the election).
B.
Communications with the U.S. Department of Justice About Investigating
Election Crimes and Possibly Appointing a New Acting Attorney General.
The indictment alleges that President Trump attempted to “use the power and authority of
the Justice Department to conduct … election crime investigations,” and “to send a letter to the
targeted states” from the Justice Department that “claimed that the Justice Department had
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identified significant concerns that may have impacted the election outcome.” Doc. 1, ¶ 10(c). The
indictment alleges a series of meetings and communications between President Trump and others,
including senior officials in the U.S. Department of Justice, relating to the investigation of federal
election fraud and possibly appointing a new Acting Attorney General of the United States (which,
as the indictment states, President Trump ultimately did not do). Id. ¶ 27 (alleging a meeting with
the incoming Acting Attorney General and Acting Deputy Attorney General “to discuss allegations
of election fraud”); id. ¶ 29 (phone call with Acting Attorney General and Acting Deputy Attorney
General to urge them to investigate election fraud); id. ¶ 36 (communication with the Attorney
General about election fraud in Michigan); id. ¶ 45 (two communications with the Acting Attorney
General and Acting Deputy Attorney General to urge them to investigate fraud in Pennsylvania);
id. ¶ 51 (communication urging the Acting Attorney General and Acting Deputy Attorney General
to investigate fraud in Wisconsin); id. ¶¶ 70-85 (meetings and communications with Department
of Justice officials about investigating election fraud and/or selecting an Acting Attorney General
who was willing to investigate election fraud); id. ¶ 70 (attempt to convince the Department of
Justice to send a letter to state officials expressing concerns about election fraud); id. ¶¶ 71-73
(communications with a DOJ official about election fraud); id. ¶ 74 (phone call with the Acting
Attorney General and Acting Deputy Attorney General about changing the leadership at the
Department of Justice); id. ¶ 77 (Oval Office meeting with the Acting Attorney General, the Acting
Deputy Attorney General, and “other advisors” about election fraud and possibly changing the
leadership of DOJ); id. ¶ 80 (meeting with DOJ official at the White House and allegedly offering
him the role of Acting Attorney General); id. ¶ 84 (meeting with the Acting Attorney General, the
Acting Deputy Attorney General, the Assistant Attorney General for the Office of Legal Counsel,
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the White House Counsel, the Deputy White House Counsel, and a Senior Advisor about changing
the leadership of the Department of Justice, which the President decided not to do).
C.
Communications with State Officials About the Federal Election and the
Exercise of Their Official Duties with Respect to the Election.
The indictment alleges a series of communications—some by President Trump, and some
by other unnamed individuals—with state officials about the administration of the federal election
and the exercise of their official duties with respect to the federal election. Doc. 1, ¶ 10(a); id.
¶¶ 15-18 (communications with the Speaker of Arizona House of Representatives about certifying
Arizona’s Presidential electors); id. ¶¶ 21 (communications with Members of the Georgia Senate
about certifying Georgia’s Presidential electors); ¶ 24 (phone call with the Georgia Attorney
General); ¶ 26 (communications with members of the Georgia House of Representatives); ¶ 31
(phone call with the Georgia Secretary of State regarding the validity of Georgia’s Presidential
electors); ¶ 35 (meeting with the Speaker of the Michigan House of Representatives and the
Majority Leader of the Michigan Senate about the administration of the election in Michigan); ¶¶
38-39 (communications with Michigan legislative leaders urging them to take legislative action
recognizing that the election results are in dispute); ¶ 43 (meeting with Pennsylvania state
legislators about the administration of the federal election in Pennsylvania).
D.
Communications with the Vice President and Members of Congress About the
Exercise of Their Official Duties in the Election-Certification Proceedings.
The indictment charges that President Trump attempted to “enlist the Vice President to use
his ceremonial role at the January 6 certification proceeding to … alter the election results,” by
“attempt[ing] to convince the Vice President” to rely on contingent slates of electors submitted by
the President’s alleged allies. Doc. 1, ¶ 10(d). Here, the indictment alleges that President Trump
and others on his official staff made a series of communications with the Vice President—in his
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legislative capacity as President of the Senate—about the exercise of his official duties in the
January 6 election-certification proceedings. Id. ¶¶ 86-95; id. ¶ 90(a)-(d) (alleging “several private
phone calls” in December 2020 and January 2021 between the Defendant and the Vice President,
in which the Defendant allegedly urged the Vice President “to use his ceremonial role at the
certification proceeding on January 6 to … overturn the results of the election”); id. ¶¶ 92-93
(meeting with the Vice President, the Vice President’s Chief of Staff, and the Vice President’s
Counsel regarding the Vice President’s exercise of his authority as President of the Senate); id.
¶ 95 (meeting with the Vice President’s Chief of Staff and the Vice President’s Counsel on the
same topic); id. ¶ 97 (alleging a private meeting with the Vice President on the same topic); id.
¶ 101 (communication asking a United States Senator to hand-deliver documents to the Vice
President regarding the contingent slates of electors); id. ¶ 102 (phone call with the Vice President
urging him to exercise his authority as President of the Senate in the President’s favor); id. ¶ 122
(urging Vice President to exercise his official duties with respect to the certification).
In addition to communications with the Vice President, the indictment alleges a handful of
communications and attempted communications with Members of Congress regarding their
official authority in Congress with respect to the election-certification proceedings. Id. ¶ 115
(phone call with the Minority Leader of the U.S. House of Representatives); id. ¶ 119(a) (attempts
to communicate with two U.S. Senators regarding the certification); id. ¶ 119(b) (calls with five
U.S. Senators and one U.S. Representative about the certification); ¶ 119(c)-(e) (attempts to
contact six U.S. Senators about the certification).
E.
Organizing Slates of Electors as Part of the Attempt to Convince Legislators
Not to Certify the Election Against Defendant.
Closely related to these communications with the Vice President and Members of
Congress, the indictment alleges that other individuals organized slates of contingent electors from
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several States to provide a justification for the Vice President to exercise his official duties in the
manner favored by President Trump. Doc. 1, ¶¶ 53-69. According to the indictment, these
contingent slates of electors allowed President Trump, in his communications with the Vice
President, to justify the exercise of the Vice President’s authority to certify the election in President
Trump’s favor or delay its certification. Id. ¶¶ 10(b), 53. The indictment alleges that President
Trump knew of these actions organizing the slates of electors and directed them to continue, but it
does not allege that President Trump took any particular action in organizing them. Id. ¶¶ 54, 56.
ARGUMENT
I.
The President Has Absolute Immunity from Criminal Prosecution for Actions
Performed Within the “Outer Perimeter” of His Official Responsibility.
“In view of the special nature of the President’s constitutional office and functions,” a
current or former President has “absolute Presidential immunity from [civil] damages liability for
acts within the ‘outer perimeter’ of his official responsibility.” Fitzgerald, 457 U.S. at 756 (quoting
Barr, 360 U.S. at 575). No court has addressed whether such Presidential immunity includes
immunity from criminal prosecution for the President’s official act. The question remains a
“‘serious and unsettled question’ of law.” See id. at 743 (citation omitted) (holding “[i]n light of
the special solicitude due to claims alleging a threatened breach of essential Presidential
prerogatives under the separation of powers,” issues of Presidential immunity were “serious and
unsettled”). In addressing this question, the Court should consider the Constitution’s text,
structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines,
and considerations of public policy. See id. at 747.
A.
The Doctrine of Separation of Powers and the President’s Unique Role in Our
Constitutional Structure Require Immunity from Criminal Prosecution.
“The President occupies a unique position in the constitutional scheme.” Fitzgerald, 457
U.S. at 749. “Article II, § 1, of the Constitution provides that ‘[t]he executive Power shall be vested
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in a President of the United States....’ This grant of authority establishes the President as the chief
constitutional officer of the Executive Branch, entrusted with supervisory and policy
responsibilities of utmost discretion and sensitivity.” Id. at 749-50.
Due to this “unique status” in our constitutional structure of separated powers, which
“distinguishes him from other executive officials,” the Supreme Court held in Fitzgerald that the
President is, and must be, “absolute[ly] immun[e] from damages liability predicated on his official
acts.” Id. 749–50 (“We consider this immunity a functionally mandated incident of the President's
unique office, rooted in the constitutional tradition of the separation of powers and supported by
our history.”); see also id. at 748 (the “policies and principles [mandating immunity] may be
considered implicit in the nature of the President’s office in a system structured to achieve effective
government under a constitutionally mandated separation of powers”).
In reaching this conclusion, the Supreme Court held that subjecting a President to personal
liability for his official actions would improperly “diver[t] [the President’s] energies” and “raise
unique risks to the effective functioning of government,” especially given “the singular importance
of the President’s duties.” Id. at 751.
Chief among these risks is the chilling effect personal liability would have on the
President’s decision-making, particularly in “matters likely to ‘arouse the most intense feelings.’”
Id. at 752 (quoting Pierson v. Ray, 386 U.S. 547, 554 (1967)). “[I]t is in precisely such cases that
there exists the greatest public interest in providing an official ‘the maximum ability to deal
fearlessly and impartially with’ the duties of his office.” Id. (quoting Ferri v. Ackerman, 444 U.S.
193, 203 (1979)). “This concern is compelling where the officeholder must make the most
sensitive and far-reaching decisions entrusted to any official under our constitutional system.” Id.
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“Nor can the sheer prominence of the President’s office be ignored.” Id. at 752-53. “In
view of the visibility of his office and the effect of his actions on countless people, the President
would be an easily identifiable target for” prosecution in countless federal, state, and local
jurisdictions across the country. Id. at 753. “Cognizance of this personal vulnerability frequently
could distract a President from his public duties, to the detriment of not only the President and his
office but also the Nation that the Presidency was designed to serve.” Id.
Although Fitzgerald concerned civil liability, the exact same, if not more elevated,
concerns apply to potential criminal prosecutions, mandating the same absolute immunity. Vertical
and horizontal separation of powers simply cannot permit local, state, or subsequent federal
officials to constrain the President’s exercise of executive judgment through threats of criminal
prosecution. To hold otherwise would be to allow the President’s political opponents to usurp his
or her constitutional role, fundamentally impairing our system of government. For this very reason,
Fitzgerald recognized that Presidential immunity is not just a creature of common law but also
“rooted in the separation of powers under the Constitution.” Id. at 753 (quoting United States v.
Nixon, 418 U.S. 683, 708 (1974)). 2
2
To be sure, Fitzgerald did not decide whether Presidential immunity extends to criminal
prosecution, and it acknowledged that “there is a lesser public interest in actions for civil damages
than … in criminal prosecutions.” 457 U.S. at 754 n.37. But the fact that the doctrine of Presidential
immunity is rooted in the separation of powers dictates that immunity must extend to criminal
prosecution as well as civil liability. While the “public interest … in criminal prosecutions” may
be important, id., it is not important enough to justify abrogating the separation of powers, the
most fundamental structural feature of our constitutional system. Further, exposure to criminal
prosecution poses a far greater threat than the prospect of civil lawsuits to the President’s
“maximum ability to deal fearlessly and impartially with the duties of his office,” and thus it raises
even greater “risks to the effective functioning of government.” Fitzgerald, 457 U.S. at 753
(citation and quotation marks omitted). Fitzgerald’s reasoning, therefore, entails that Presidential
immunity include immunity from both civil suit and criminal prosecution.
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“Nothing is so politically effective as the ability to charge that one’s opponent and his
associates are not merely wrongheaded, naive, ineffective, but, in all probability, ‘crooks.’ And
nothing so effectively gives an appearance of validity to such charges as a Justice Department
investigation and, even better, prosecution.” Morrison v. Olson, 487 U.S. 654, 713 (1988) (Scalia,
J., dissenting). “The present [indictment] provides ample means for that sort of attack, assuring
that massive and lengthy investigations” and prosecutions “will occur,” bedeviling every future
Presidential administration and ushering in a new era of political recrimination and division. Id.
(Analogically, the executive privilege protecting Presidential communications is also
designed to protect the President’s ability to function in his role to the maximum extent, and “is
fundamental to the operation of Government and inextricably rooted in the separation of powers
under the Constitution.” Nixon, 418 U.S. at 708.)
B.
Impeachment and Conviction by the Senate Provide the Exclusive Method of
Proceeding Against a President for Crimes in Office.
Presidential immunity from criminal prosecution for official acts is also rooted in the text
of the Constitution. The Impeachment Clauses provide that the President may be charged by
indictment only in cases where the President has been impeached and convicted by trial in the
Senate. Here, President Trump was acquitted by the Senate for the same course of conduct.
The Impeachment Clause of Article I provides that “Judgment in Cases of Impeachment
shall not extend further than to removal from Office … but the Party convicted shall nevertheless
be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.” U.S.
CONST. art. I, § 3, cl. 7 (emphasis added). Because the Constitution specifies that only “the Party
convicted” by trial in the Senate may be “liable and subject to Indictment, Trial, Judgment and
Punishment,” id., it presupposes that a President who is not convicted may not be subject to
criminal prosecution. As Justice Alito recently noted, “[t]he plain implication” of this Clause “is
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that criminal prosecution, like removal from the Presidency and disqualification from other offices,
is a consequence that can come about only after the Senate’s judgment, not during or prior to the
Senate trial.” Trump v. Vance, 140 S. Ct. 2412, 2444 (2020) (Alito, J., dissenting). “This was how
Hamilton explained the impeachment provisions in the Federalist Papers. He wrote that a President
may ‘be impeached, tried, and, upon conviction ... would afterwards be liable to prosecution and
punishment in the ordinary course of law.’” Id. (quoting THE FEDERALIST No. 69, p. 416 (C.
Rossiter ed. 1961)); see also THE FEDERALIST No. 77, p. 464 (A. Hamilton) (a President is “at all
times liable to impeachment, trial, [and] dismission from office,” but any other punishment must
come only “by subsequent prosecution in the common course of law”). See also SCALIA &
GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS, § 10, at 107 (2012) (“When a car
dealer promises a low financing rate to ‘purchasers with good credit,’ it is entirely clear that the
rate is not available to purchasers with spotty credit.”).
“James Wilson—who had participated in the Philadelphia Convention at which the
document was drafted—explained that … the President … ‘is amenable to [the laws] in his private
character as a citizen, and in his public character by impeachment.’” Clinton v. Jones, 520 U.S.
681, 696 (1997) (quoting 2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863))
(cleaned up). “With respect to acts taken in his ‘public character’—that is, official acts—the
President may be disciplined principally by impeachment, not by private lawsuits for damages.
But he is otherwise subject to the laws for his purely private acts.” Id.; see also THE FEDERALIST
No. 43 (J. Madison); THE FEDERALIST No. 65 (A. Hamilton).
Fitzgerald reinforced this conclusion:
A rule of absolute immunity for the President will not leave the
Nation without sufficient protection against misconduct on the part
of the Chief Executive. There remains the constitutional remedy of
impeachment. In addition, there are formal and informal checks on
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Presidential action…. The President is subjected to constant scrutiny
by the press. Vigilant oversight by Congress also may serve to deter
Presidential abuses of office, as well as to make credible the threat
of impeachment. Other incentives to avoid misconduct may include
a desire to earn reelection, the need to maintain prestige as an
element of Presidential influence, and a President’s traditional
concern for his historical stature.
Fitzgerald, 457 U.S. at 757. Notably absent from Fitzgerald’s list of “formal and informal checks”
on the President for “abuses of office,” id., is any mention of criminal prosecution.
Here, President Trump is not a “Party convicted” in an impeachment trial by the Senate.
U.S. CONST. art. I, § 3, cl. 7. In January 2021, he was impeached on charges arising from the same
course of conduct at issue in the indictment. H. RES. 24 (117th Cong. 1st Sess.), available at
https://www.congress.gov/bill/117th-congress/house-resolution/24/text. President Trump was
acquitted of these charges after trial in the Senate, and he thus remains immune from prosecution.
The Special Counsel cannot second-guess the judgment of the duly elected United States Senate.
C.
Early Authorities Support Presidential Immunity from Criminal
Prosecution.
In Marbury v. Madison, Charles Lee—Attorney General of the United States under
Presidents George Washington and John Adams—“declare[d] it to be my opinion, grounded on a
comprehensive view of the subject, that the President is not amenable to any court of judicature
for the exercise of his high functions, but is responsible only in the mode pointed out in the
constitution.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 149 (1803) (emphasis added). In his
opinion for the Court, Chief Justice Marshall endorsed this view: “[b]y the constitution of the
United States, the President is invested with certain important political powers, in the exercise of
which he is to use his own discretion, and is accountable only to his country in his political
character, and to his own conscience.” Id. at 165–66. In cases involving the President’s official
duties, “whatever opinion may be entertained of the manner in which executive discretion may be
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used, still there exists, and can exist, no power to control that discretion. The subjects are political.
They respect the nation, not individual rights, and being entrusted to the executive, the decision of
the executive is conclusive.” Id. at 166. “The acts of such an officer, as an officer, can never be
examinable by the courts.” Id. (emphasis added). When the President “act[s] in cases in which the
executive possesses a constitutional or legal discretion, nothing can be more perfectly clear than
that their acts are only politically examinable.” Id. If the President “acts in a case, in which
executive discretion is to be exercised … any application to a court to control, in any respect, his
conduct, would be rejected without hesitation.” Id. at 170–71.
Justice Story cited Marbury v. Madison for this point in his oft-cited 1833 treatise:
There are other incidental powers, belonging to the executive
department, which are necessarily implied from the nature of the
functions, which are confided to it. Among these, must necessarily
be included the power to perform them, without any obstruction or
impediment whatsoever. The president cannot, therefore, be liable
to arrest, imprisonment, or detention, while he is in the discharge of
the duties of his office; and for this purpose his person must be
deemed, in civil cases at least, to possess an official inviolability. In
the exercise of his political powers he is to use his own discretion,
and is accountable only to his country, and to his own conscience.
His decision, in relation to these powers, is subject to no control;
and his discretion, when exercised, is conclusive.
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, § 1563 (1833),
available
at
https://lonang.com/library/reference/story-commentaries-us-constitution/sto-337/
(visited August 14, 2023) (emphasis added).
Likewise, Martin v. Mott held that, “[w]hen the President exercises an authority confided
to him by law,” his conduct cannot be second-guessed by a jury: “If the fact of the existence of the
exigency were averred, it would be traversable, and of course might be passed upon by a jury; and
thus the legality of the orders of the President would depend, not on his own judgment of the facts,
but upon the finding of those facts upon the proofs submitted to a jury.” 25 U.S. (12 Wheat.) 19,
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32-33 (1827); see also Tenney v. Brandhove, 341 U.S. 367, 377 (1951) (holding that the immunity
of Members of Congress “would be of little value if they could be subjected to … the hazard of a
judgment against them based upon a jury’s speculation as to motives”).
D.
Two Hundred Thirty-Four Years of History and Tradition Support
Presidential Immunity from Criminal Prosecution.
In Nixon v. Fitzgerald, the Supreme Court emphasized that “the presuppositions of our
political history,” including “tradition[s] so well grounded in history and reason,” help to define
the scope of Presidential immunity. 457 U.S. at 745 (citation and quotation marks omitted); see
also Tenney, 341 U.S. at 372.
Here, 234 years of unbroken historical practice—from 1789 until 2023—provide
compelling evidence that the power to indict a former President for his official acts does not exist.
No prosecutor, whether state, local, or federal, has this authority; and none has sought to exercise
it until now. American history teems with situations where the opposing party passionately
contended that the President and his closest advisors were guilty of criminal behavior in carrying
out their official duties—John Quincy Adams’ “corrupt bargain” with Henry Clay provides a
notable example. In every such case, the outraged opposing party eventually took power, yet none
ever brought criminal charges against the former President based on his exercise of official duties.
Nor did any state or local prosecutor of the thousands of such officials throughout the history and
tradition of United States attempt a similar maneuver.
A strong historical practice of not exercising a supposed power—especially when there has
been ample incentive and opportunity to do so—undercuts the sudden discovery of the newly
minted power. See, e.g., NFIB v. OSHA, 595 U.S. 109, 119 (2022) (per curiam) (“It is telling that
OSHA, in its half century of existence, has never before adopted a broad public health regulation
of this kind…. [t]his ‘lack of historical precedent’ … is a ‘telling indication’ that the mandate
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extends beyond the agency’s legitimate reach.”) (citation omitted); Seila Law LLC v. CFPB, 140
S. Ct. 2183, 2201 (2020) (same); Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 505 (2010) (same); Printz v. United States, 521 U.S. 898, 916 (1997) (“To complete the
historical record, we must note that there is not only an absence of executive-commandeering
statutes in the early Congresses, but there is an absence of them in our later history as well, at least
until very recent years.”). “The constitutional practice . . . tends to negate the existence of
the…power asserted here.” Printz, 521 U.S. at 918.
E.
Analogous Immunity Doctrines Support Presidential Immunity from
Criminal Prosecution.
Analogous immunity doctrines strongly favor the conclusion that absolute Presidential
immunity extends to immunity from criminal prosecution.
1.
Presidential immunity from civil suits.
First, Nixon v. Fitzgerald holds the President is absolutely immune from personal liability
for conduct within the “outer perimeter” of his official duties. 457 U.S. at 756. The inference that
such immunity should include both civil and criminal liability is compelling.
In their common law origins, immunity doctrines extended to both civil and criminal
liability, because “[t]he immunity of federal executive officials began as a means of protecting
them in the execution of their federal statutory duties from criminal or civil actions based on state
law.” Butz v. Economou, 438 U.S. 478, 489 (1978). Common-law immunity doctrines, therefore,
encompass the “privilege … to be free from arrest or civil process,” i.e., criminal, and civil
proceedings alike. Tenney, 341 U.S. at 372. In fact, immunity from criminal prosecution is more
fundamental to the concept of official immunity than immunity from mere suits for civil damages,
as such doctrines arose primarily to avoid potential retribution via criminal charges brought by
government officials. See Butz v. Economou, 438 U.S. at 489.
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2.
Absolute judicial immunity.
Like absolute executive immunity, absolute judicial immunity protects state and federal
judges from criminal prosecution, as well as civil suits, based on their official judicial acts. In
Spalding v. Vilas, the Supreme Court noted that the doctrine of judicial immunity extends to both
“civil suit” and “indictment.” 161 U.S. 483, 494 (1896) (quoting Yates v. Lansing, 5 Johns. 282,
291 (N.Y. 1810) (Kent, C.J.)). In Pierson, likewise, the Supreme Court held that “[t]his immunity
applies even when the judge is accused of acting maliciously and corruptly.” Pierson, 386 U.S. at
554; see also Fitzgerald, 457 U.S. at 745-46.
At common law, judicial immunity included immunity from criminal prosecution. “In the
case of courts of record … it was held, certainly as early as [the 14th century], that a litigant could
not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his
jurisdiction.” J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980
DUKE L.J. 879, 884 (emphasis added) (quoting 6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW
235-36 (2d ed. 1937)); see also id. at 887 n.39 (quoting 77 Eng. Rep. at 1307).
In accordance with this long common law tradition, our courts have universally rejected
criminal charges against judges for their judicial acts. In United States v. Chaplin, for instance, the
Court held that judicial immunity barred the criminal prosecution of a judge who was “acting in
his judicial capacity and within his jurisdiction in imposing sentence and probation upon a person
charged with an offense in his court to which the defendant ha[d] pleaded guilty.” 54 F. Supp. 926,
928 (S.D. Cal. 1944). In reaching this conclusion, the Chaplin Court extensively reviewed historic
authorities and, like those authorities, determined criminal prosecution of judges for judicial acts
“would … destroy the independence of the judiciary and mark the beginning of the end of an
independent and fearless judiciary.” Id. at 934; see also id. (“The rich tradition, the long line of
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decisions, the confidence of our people in the state and federal judiciary, the experience of over a
century and a half expressed in our legal lore, co-extensive with our national existence, cannot be
ignored in deciding this issue.”). The same reasoning applies to the President here.
F.
Concerns of Public Policy Favor the President’s Immunity from Prosecution.
In considering Presidential immunity, the Supreme Court “has weighed concerns of public
policy, especially as illuminated by our history and the structure of our government.” Fitzgerald,
457 U.S. at 747–48. Here, public policy overwhelmingly supports the finding of immunity.
1.
The Presidency involves “especially sensitive duties.”
First, the Supreme Court emphasizes the necessity of robust immunity for officials who
have “especially sensitive duties,” such as prosecutors and judges. Fitzgerald, 457 U.S. at 746
(citing Imbler, 424 U.S. 409 and Stump v. Sparkman, 435 U.S. 349 (1978)). No one exercises more
sensitive duties than the President: “Under the Constitution and laws of the United States the
President has discretionary responsibilities in a broad variety of areas, many of them highly
sensitive.” Id. at 756. As the government recently explained, “immunity reaches all of the
President’s conduct within the vast ambit of his Office, including its ‘innumerable’ constitutional,
statutory, and historical dimensions. . . . In all contexts, questions of Presidential immunity must
be approached with the greatest sensitivity to the unremitting demands of the Presidency.” Brief
for United States as Amicus Curiae in Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, at
1–2 (D.C. Cir. filed March 2, 2023) (hereafter “Blassingame Amicus Br.,” attached as Exhibit A)
(citing Fitzgerald, 457 U.S. at 750, 756).
2.
The Presidency requires “bold and unhesitating action.”
Second, the Supreme Court reasons that immunity is most appropriate for officials from
whom “bold and unhesitating action” is required. Id. at 745; see also Imbler, 424 U.S. at 423-24,
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427-28 (holding that prosecutors must enjoy absolute immunity to ensure “the vigorous and
fearless performance of the prosecutor’s duty that is essential to the proper functioning of the
criminal justice system”).
“[T]o submit all officials, the innocent as well as the guilty, to the burden of a trial and to
the inevitable danger of its outcome would dampen the ardor of all but the most resolute, or the
most irresponsible, in the unflinching discharge of their duties,” and subject them “to the constant
dread of retaliation.” Barr, 360 U.S. at 571–72 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d
Cir. 1949) (Hand, J.)). In Vance, the Supreme Court noted this concern was central to its adoption
of absolute immunity for the President, holding that Fitzgerald “conclud[ed] that a President …
must ‘deal fearlessly and impartially with the duties of his office’—not be made ‘unduly cautious
in the discharge of [those] duties’ by the prospect of civil liability for official acts.’” Vance, 140
S. Ct. at 2426; accord Blassingame Amicus Br. at 9 (“[A]s the Supreme Court has emphasized, it
is precisely in such circumstances that there is “the greatest public interest in providing” the
President with “the maximum ability to deal fearlessly and impartially with the duties of his
office.” (quoting Fitzgerald 457 U.S. at 752–53)).
For that reason, the Supreme Court emphasizes that, “[i]n exercising the functions of his
office, the head of an Executive Department, keeping within the limits of his authority, should not
be under an apprehension that the motives that control his official conduct may, at any time,
become the subject of inquiry in a civil suit for damages. It would seriously cripple the proper and
effective administration of public affairs as entrusted to the executive branch of the government,
if he were subjected to any such restraint.” Fitzgerald, 457 U.S. at 745 (quoting Spalding, 161 U.S.
at 498) (emphasis added); see also Barr, 360 U.S. at 573 (holding that official immunity is
“designed to aid in the effective functioning of government”).
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“Frequently acting under serious constraints of time and even information,” a President
inevitably makes many important decisions, and “[d]efending these decisions, often years after
they were made, could impose unique and intolerable burdens….” Imbler, 424 U.S. at 425–26; see
also Barr, 360 U.S. at 571 (expressing concern that suits would “inhibit the fearless, vigorous, and
effective administration of policies of government”).
The President’s “focus should not be blurred by even the subconscious knowledge” of the
risk of future prosecution. Imbler, 424 U.S. at 427. The threat of criminal prosecution poses a
greater risk of deterring bold and unhesitating action than the threat of civil suit, and, therefore,
requires at least the same immunity to ensure the President maintains the “maximum ability to deal
fearlessly and impartially with the duties of his office.” Fitzgerald, 457 U.S. at 751 (citation and
quotation marks omitted); see also Vance, 140 S. Ct. at 2452 (Alito, J., dissenting) (“There is no
question that a criminal prosecution holds far greater potential for distracting a President and
diminishing his ability to carry out his responsibilities than does the average civil suit.”).
3.
Without Immunity the President would be “harassed by vexatious
actions.”
Another key purpose of immunity for officials is to “prevent them being harassed by
vexatious actions.” Spalding, 161 U.S. at 495 (quotation omitted). In Imbler, the Supreme Court
held that the common-law immunity of prosecutors rests on the “concern that harassment by
unfounded litigation would cause a deflection of the prosecutor’s energies from his public duties,
and the possibility that he would shade his decisions instead of exercising the independence of
judgment required by his public trust.” 424 U.S. at 423; see also Butz, 438 U.S. at 512. The
President, as the most high-profile government official in the country, is most likely to draw
politically motivated ire, and most likely to be targeted for harassment by vexatious actions. See
Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 369 (2004) (“[R]ecognizing the paramount
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necessity of protecting the Executive Branch from vexatious litigation that might distract it from
the energetic performance of its constitutional duties.”).3
II.
The Indictment Alleges Only Acts Committed Within the Core of the President’s
Official Responsibilities, Which Are Shielded by Absolute Immunity.
The indictment is based entirely on alleged actions within the heartland of President
Trump’s official duties, or at the very least, within the “outer perimeter” of his official duties. As
President Trump is absolutely immune from criminal prosecution for such acts, the Court should
dismiss the indictment.
A.
The Scope of Criminal Immunity Includes All Actions That Fall Within the
“Outer Perimeter” of the President’s Official Duties.
The Supreme Court adopted the expansive “outer perimeter” test for immunity precisely
because any “functional” test would be inconsistent with the broad scope of Presidential duties.
Id. at 756; accord Blasingame Amicus Br. at 9 (“This immunity, the Supreme Court has explained,
may not be curtailed by attempting to parse discrete Presidential ‘functions,’ or through allegations
that official acts were taken with improper motives. Because the President has ‘discretionary
responsibilities in a broad variety of areas, . . . [i]n many cases it would be difficult to determine
which of the President’s innumerable ‘functions’ encompassed a particular action.’” (quoting
Fitzgerald, 457 U.S. at 756)).
In other words, the “outer perimeter” of Presidential duties—and thus the scope of
Presidential immunity—encircles a vast swath of territory, because the scope of the President’s
3
Vance held that the need to avoid vexatious litigation was not, standing alone, sufficient to shield
the President from a criminal subpoena for private records, 140 S. Ct. at 2426. However, criminal
prosecutions for official acts raise numerous additional practical and prudential concerns that do
not apply in the subpoena context. It is these additional factors, in combination with the risk of
vexatious litigation, that compels executive immunity—as Fitzgerald, Spalding, Butz, Imbler, and
similar cases held.
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duty and authority in our constitutional system is uniquely and extraordinarily broad. “Article II
‘makes a single President responsible for the actions of the Executive Branch,’” Free Enter. Fund,
561 U.S. at 496-97 (quoting Clinton, 520 U.S. at 712-13 (Breyer, J., concurring in judgment)), and
the President is “the only person who alone composes a branch of government,” Trump v. Mazars
USA, LLP, 140 S. Ct. 2019, 2034 (2020).
Among these Article II duties, perhaps the most fundamental are the framers’ dual
mandates that he hold “the executive Power,” and with it, the duty to “take Care that the Laws be
faithfully executed.” U.S. CONST. art. II, §§ 1, 3. To this end, the President must assume
“supervisory and policy responsibilities of utmost discretion and sensitivity,” which “include[s]
the enforcement of federal law.” Fitzgerald, 457 U.S. at 750; see also Vance, 140 S. Ct. at 2425
(The President’s “duties, which range from faithfully executing the laws to commanding the
Armed Forces, are of unrivaled gravity and breadth,” and “[q]uite appropriately, those duties come
with protections that safeguard the President’s ability to perform his vital functions.”).
Additionally, “[t]he public looks to the President, as the leader of the Nation, for guidance
and reassurance even on matters over which the Executive Branch—or the federal government as
a whole—has no direct control. From the actions of Congress and the Judiciary, to the policies of
state and local governments, to the conduct of private corporations and individuals, the President
can and must engage with the public on matters of public concern.” Blassingame Amicus Br. at
12. Thus, even where a President’s actions are “directed toward the constitutional responsibilities
of another Branch of government,” or concern “matters for which the President himself bears” no
direct constitutional or statutory responsibility, id. at 11–12, his actions are often still within the
“outer perimeter” of his official duties, see Fitzgerald 457 U.S. at 756.
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Without question, the President “occupies a unique office with powers and responsibilities
so vast and important that the public interest demands that he devote his undivided time and
attention to his public duties.” Clinton, 520 U.S. at 697.
As the Supreme Court held, “the higher the post, the broader the range of responsibilities
and duties, and the wider the scope of discretion, it entails.” Barr, 360 U.S. at 573. As the highest
of all posts, the Presidency warrants the broadest possible immunity, id., and acts must fall within
its “outer perimeter” unless clearly established as beyond his duties. See Klayman v. Obama, 125
F. Supp. 3d 67, 86 (D.D.C. 2015) (“Absolute immunity is extended to few officers, and it is denied
only if the officer acts ‘without any colorable claim of authority.’” (quoting Bernard v. Cnty. of
Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (emphasis added)).
B.
The Nature of the Act, Not the Manner in Which It Is Conducted or Its Alleged
Purpose, Determines Whether It Falls Within the Scope of Immunity.
In deciding what conduct falls within the scope of official duties, courts apply an objective
test based on the nature of the act—not the manner in which it was conducted, or any allegedly
malicious purpose.
Thus, “[i]mmunity is not overcome by ‘allegations of bad faith or malice.’ Nor is immunity
defeated by an allegation that the President acted illegally.” Klayman, 125 F. Supp. 3d at 86
(citations omitted) (quoting Barrett v. Harrington, 130 F.3d 246, 254–55 (6th Cir.1997)); accord
Blassingame Amicus Br. at 9–10 (“[A]n inquiry into the President’s motives” to determine
whether a particular action was done in furtherance of a legitimate function or for nefarious reasons
would “be highly intrusive” and would impermissibly “subject the President to trial on virtually
every allegation that an action was unlawful, or was taken for a forbidden purpose.” (quoting
Fitzgerald, 457 U.S. at 756)).
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The Supreme Court has repeatedly emphasized this point. See, e.g., Fitzgerald, 457 U.S.
at 74546; Fisher, 80 U.S. at 354 (“The allegation of malicious or corrupt motives could always be
made, and if the motives could be inquired into judges would be subjected to the same vexatious
litigation upon such allegations, whether the motives had or had not any real existence.”);
Spalding, 161 U.S. at 494, 498; Pierson, 386 U.S. at 554; Barr, 360 U.S. at 575 (holding that
immunity applied “despite the allegations of malice in the complaint”).
As Judge Learned Hand’s often-cited analysis of this question states:
The [immunity] decisions have, indeed, always imposed as a
limitation upon the immunity that the official’s act must have been
within the scope of his powers; and it can be argued that official
powers, since they exist only for the public good, never cover
occasions where the public good is not their aim, and hence that to
exercise a power dishonestly is necessarily to overstep its bounds. A
moment’s reflection shows, however, that that cannot be the
meaning of the limitation without defeating the whole doctrine.
What is meant by saying that the officer must be acting within his
power cannot be more than that the occasion must be such as would
have justified the act, if he had been using his power for any of the
purposes on whose account it was vested in him.
Gregoire, 177 F.2d at 581 (Hand, J.) (emphasis added); see also, e.g., Novoselsky v. Brown, 822
F.3d 342, 351–52 (7th Cir. 2016) (“An ‘unworthy purpose’ behind the communication ‘does not
destroy the privilege,’ for immunity would be of little use if it could be defeated by ‘a jury’s
speculation as to motives.’”) (quoting Barr, 360 U.S. at 575); In re Global Crossing, Ltd. Sec.
Litig., 314 F. Supp. 2d 172, 174-75 (S.D.N.Y. 2003) (“The ‘outer perimeter’ of the President’s
‘official responsibility’ would shrink to nothing if a plaintiff, merely by reciting that official acts
were part of an unlawful conspiracy, could have them treated by the courts as ‘unofficial
conduct.’”) (citation omitted).
Nor does a mere allegation that an act was unlawful or otherwise inconsistent with a
particular statutory scheme place it beyond the “outer perimeter” of the President’s official
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responsibility. For example, in Fitzgerald, the plaintiff, a federal employee working for the Air
Force, argued that President Nixon exceeded his official responsibilities in unlawfully causing the
plaintiff’s dismissal without adherence to certain statutory processes and protections: “[b]ecause
Congress has granted this legislative protection . . . no federal official could, within the outer
perimeter of his duties of office, cause Fitzgerald to be dismissed without satisfying this standard
in prescribed statutory proceedings.” 457 U.S. at 756.
The Supreme Court rejected this argument, holding President Nixon’s general
constitutional and statutory authority to oversee the Air Force placed the nature of his acts
comfortably within the “outer perimeter” of his official conduct, and therefore entitled to absolute
immunity, even if allegedly unlawful. Id. at 756–57 To hold otherwise, the Supreme Court
determined, “would subject the President to trial on virtually every allegation that an action was
unlawful, or was taken for a forbidden purpose” and therefore “deprive absolute immunity of its
intended effect.” Id.; see also Stump v. Sparkman, 435 U.S. at 362 (“[T]he factors determining
whether an act by a judge is a ‘judicial’ one relate to the nature of the act itself, i.e., whether it is
a function normally performed by a judge….”) (emphasis added); Tenney, 341 U.S. at 378.
For the same reasons, alleging that immune acts were part of a conspiracy does not defeat
immunity: “since absolute immunity spares the official any scrutiny of his motives, an allegation
that an act was done pursuant to a conspiracy has no greater effect than an allegation that it was
done in bad faith or with malice, neither of which defeats a claim of absolute immunity.” Dorman
v. Higgins, 821 F.2d 133, 139 (2d Cir. 1987) (collecting cases).4
4
See also Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). “[A]llegations that a
conspiracy produced a certain decision should no more pierce the actor’s immunity than
allegations of bad faith, personal interest or outright malevolence.” Holloway v. Walker, 765 F.2d
517, 522 (5th Cir. 1985) (“It is a well established rule that where a judge’s absolute immunity
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Importantly, this recognition of absolute immunity, regardless of internal motivation, does
“not place the President ‘above the law,’” but instead simply clarifies that the remedy for alleged
official misconduct lies, as the Constitution requires, with Congress through impeachment, and
through other informal means. Fitzgerald, 457 U.S. at 757.
C.
Presidential Conduct With Both Official and Private Character Is Immune.
Because of the unique nature of the Presidency, the President’s exercise of his official
responsibilities may have personal ramifications, and vice versa. Indeed, as the Supreme Court has
recognized, it is commonplace for a President’s speech and conduct to have dual roles—both an
official and personal character. “The President is the only person who alone composes a branch of
government. As a result, there is not always a clear line between his personal and official affairs.”
Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020). Thus, “for any President the line
between official and personal can be both elusive and difficult to discern.” In re Lindsey, 158 F.3d
1263, 1286 (D.C. Cir. 1998) (Tatel, J., concurring in part and dissenting in part). “Because the
Presidency is tied so tightly to the persona of its occupant, … official matters … often have
personal implications for a President.” Id.
The government recently agreed with this point before the D.C. Circuit: “a ‘first-term
President is, in a sense, always a candidate for office,’ and it is ‘not the least bit unusual for firstterm Presidents to comment on public policy or foreign affairs at campaign events, or, in this day,
to announce policy changes by tweet during an election year.’” Blassingame Amicus Br. at 13
(citation omitted).
would protect him from liability for the performance of particular acts, mere allegations that he
performed those acts pursuant to a … conspiracy will not be sufficient to avoid the immunity.”).
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For example, “The announcement of a Presidential policy decision at a political rally, or
remarks on foreign policy delivered at a campaign event, cannot categorically be excluded from
the scope of the President’s Office merely because of the context in which they are made.” Id. at
13-14. “And other statements at such events may be understood by members of the public and
domestic and foreign leaders as reflecting the official views of the President, not just the remarks
of a political candidate.” Id. at 14.
For this very reason, it is not “appropriate to frame the immunity question … in terms of
whether the challenged conduct of the President was undertaken with a purpose ‘to secure or
perpetuate incumbency.’” Id. (citation omitted). “The Supreme Court in Nixon [v. Fitzgerald]
emphatically rejected an argument that otherwise-official acts lose immunity if they are motivated
by an impermissible purpose. That logic applies with even greater force to the suggestion that the
President should be subject to suit for his official acts whenever those acts are—or are plausibly
alleged to have been—motivated by electoral or political considerations.” Id. at 14-15 (citation
omitted).
Thus, even if the President’s speech or conduct appears to have a dual character—i.e., both
official and personal (including campaign-related) at the same time—that conduct still lies within
the “outer perimeter” of his official responsibilities and is immune from prosecution.
D.
Every Act Alleged in the Indictment Falls Within the Outer Perimeter of the
President’s Official Duties and Is Immune from Criminal Prosecution.
Applying this objective test, every action of the Defendant alleged in the indictment falls
within the “outer perimeter” of President Trump’s official duties. As an initial matter, every action
of the Defendant charged in the indictment occurred while he was still in office as President of the
United States, and, according to the prosecution, all concerned a federal government function.
Doc. 1. Given the all-consuming nature of the Presidency, these facts alone strongly support the
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notion that the indictment is based solely on President Trump’s official acts. See Clinton, 520 U.S.
at 697 (recognizing that the Presidency carries “powers and responsibilities so vast and important”
that they demand “undivided time and attention to … public duties”).
1.
Making public statements, including Tweets, about matters of national
concern is an official action that lies at the heart of Presidential duties.
First, making public statements on matters of public concern—especially where they relate
to a core federal function such as the administration of a federal election—unquestionably falls
within the scope of the President’s official duties. “The President of the United States possesses
an extraordinary power to speak to his fellow citizens and on their behalf.” Trump v. Hawaii, 138
S. Ct. 2392, 2417-18 (2018). “[S]peech is unquestionably a critical function of the presidency.”
Thompson v. Trump, 590 F. Supp. 3d 46, 79 (D.D.C. 2022). As one scholar of the Presidency has
explained, “Presidents have a duty constantly to defend themselves publicly, to promote policy
initiatives nationwide, and to inspirit the population. And for many, this Presidential ‘function’ is
not one duty among many, but rather the heart of the presidency—its essential task.” JEFFREY K.
TULIS, THE RHETORICAL PRESIDENCY 4 (2017).
In Barr, the Supreme Court held that communicating with the public about matters of
public interest is standard government practice and well within the scope of official duties:
The issuance of press releases was standard agency practice, as it
has become with many governmental agencies in these times. We
think that under these circumstances a publicly expressed statement
of the position of the agency head … was an appropriate exercise of
the discretion which an officer of that rank must possess if the public
service is to function effectively. It would be an unduly restrictive
view of the scope of the duties of a policy-making executive official
to hold that a public statement of agency policy in respect to matters
of wide public interest and concern is not action in the line of duty.
Barr, 360 U.S. at 574-75. Notably, immunity lies even if the official’s public statements are false
and “actuated by malice,” which, of course, President Trump denies. Id. at 568.
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This conclusion applies even more strongly to the President. The tradition of Presidents
making public statements on matters of national concern arose in the first days of the Presidency
and encompasses some of the most historic Presidential actions in American History, including
George Washington’s Farewell Address and Abraham Lincoln’s Gettysburg Address. President
Theodore Roosevelt described the Presidency as a “bully pulpit” for advancing policy views on
matters of public concern. When a President speaks to the public on matters of public concern—
especially issues of uniquely federal concern, like federal elections—those statements fall in the
heartland of his or her official duties.
Still today, the government recognizes the statements from the bully pulpit as a
fundamentally Presidential act, entitled to the immunity recognized in Fitzgerald: “The traditional
‘bully pulpit’ of the Presidency … is not limited to speech concerning matters for which the
President bears constitutional or statutory responsibility,” but includes “matters over which the
Executive Branch—or the federal government as a whole—has no direct control.” Id. at 12. “Such
speech is an important traditional function of the Presidency, and it would offend the constitutional
separation-of-powers principles recognized in Nixon [v. Fitzgerald] for courts to superintend the
President’s speech to his constituents and to other officeholders….” Id. The government has taken
the same position in other matters as well. See, e.g., Government’s Application for Stay of
Injunction, Murthy v. Missouri, No. 23A243 (U.S.) (filed Sept. 14, 2023) (U.S. Solicitor General
arguing that “[a] central dimension of Presidential power is the use of the Office’s bully pulpit to
seek to persuade Americans . . . to act in ways that the President believes would advance the public
interest” and “[o]ne of the central duties and prerogatives of the President … is to speak to the
public on matters of public concern, and [he] must have the latitude to do so forcefully at times”).
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Moreover, the Supreme Court emphasizes that “[a] government entity has the right to speak
for itself. It is entitled to say what it wishes, and to select the views that it wants to express.”
Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009) (alterations, citations, and quotation
omitted) (citing numerous cases). “[T]he First Amendment does not say that Congress and other
government entities must abridge their own ability to speak freely.” Matal v. Tam, 582 U.S. 218,
234 (2017); see also, e.g., Lynch v. President of the U.S., 2009 WL 2949776, at *1 (N.D. Tex.
Sept. 14, 2009) (“Televised publication of the President’s views on various topical items is within
the outer perimeter of his official duties.”). This doctrine applies all the more to the Presidency.
For the same reasons, posting Tweets on matters of public concern that relate to the
administration of a federal election falls within the heartland of the President’s official duties. A
Tweet is a public statement in a different (and more accessible) forum. The fact that President
Trump most often communicated with the public through Twitter, rather than press releases or
public speeches, is merely a difference of medium, not of function.5
Although, addressing a different set of allegations, this Court recently concluded that some
of President Trump’s Tweets and public statements relating to the January 6 certification process
did not fall within the outer perimeter of his official duties. Thompson, 590 F. Supp. 3d at 79-84.
5
In fact, the Second Circuit recently held that President Trump’s Twitter account during his
Presidency was a government-run public forum for speech, and that “the factors pointing to the
public, non–private nature of the Account and its interactive features are overwhelming.” Knight
First Amend. Inst. at Columbia Univ. v. Trump, 928 F.3d 226, 236 (2d Cir. 2019), cert. granted,
judgment vacated as moot sub nom. Biden v. Knight First Amend. Inst. At Columbia Univ., 141 S.
Ct. 1220 (2021). The Second Circuit stated that President Trump “has stipulated that he … uses
the Account frequently ‘to announce, describe, and defend his policies; to promote his
Administration's legislative agenda; to announce official decisions; to engage with foreign political
leaders; to publicize state visits; [and] to challenge media organizations whose coverage of his
Administration he believes to be unfair.’ In June 2017, then–White House Press Secretary Sean
Spicer stated at a press conference that President Trump’s tweets should be considered ‘official
statements by the President of the United States.’” Id. at 231. The Second Circuit “conclude[d]
that the evidence of the official nature of the Account is overwhelming.” Id. at 234.
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However, Thompson addressed a different set of allegations, and is therefore distinguishable from
this case. Regardless, Thompson’s analysis is non-binding and unpersuasive.6 First, Thompson
acknowledged that President Trump’s “pre-January 6th Tweets and the January 6 Rally Speech
addressed matters of public concern: the outcome of the 2020 Presidential Election and election
integrity. Whatever one thinks of the President’s views on those subjects, they plainly were matters
of public concern.” Id. at 79.
The analysis should have ended there, as speaking to the public on matters of public
concern—especially uniquely federal concerns, like a federal election—is not only a
straightforward and long-established Presidential function, but itself “a critical function of the
Presidency.” Id. at 79. Yet the Court, puzzlingly, went on to analyze whether those Tweets “were
spoken in furtherance” of another, entirely separate, Presidential function. Id. at 81.
Thompson’s artificially cramped formulation of the President’s authority to speak
contradicts the much broader historic tradition of Presidential communications on all matters that
affect the Nation. Adopting Thompson’s analysis, for example, would place President Biden’s
recent criticism of the Supreme Court’s opinion in Dobbs, or his regular criticism of Congress and
certain state governments, outside the “outer perimeter” of official duties. This cannot be the case.
Second, Thompson misapplied its own “furtherance of a Presidential function” test.
Thompson acknowledged that the investigation and enforcement of fraud in federal elections is a
core Executive function. Conceding that “enforcing election laws through litigation strikes at the
6
Other recent district court decisions coming to similar conclusions in the context of President
Trump’s claims of civil immunity are largely consistent with Thompson. See Moore v. Trump, No.
22-CV-00010 (APM), 2022 WL 3904320, at *1 (D.D.C. Aug. 2, 2022); Michigan Welfare Rts.
Org. v. Trump, No. CV 20-3388 (EGS), 2022 WL 17249218, at *4–5 (D.D.C. Nov. 28, 2022);
United States v. Chrestman, 525 F. Supp. 3d 14, 33 (D.D.C. 2021). For ease of reference, this
memorandum discusses Thompson, but its analysis applies to those other decisions as well.
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core of the executive branch’s duty to faithfully execute the law,” Thompson held that “[t]he
President can enforce election laws through litigation initiated by the Department of Justice or the
Federal Election Commission, agencies over which he has appointment authority.” Id. at 78. “A
lawsuit is the ultimate remedy for a breach of the law, and it is to the President, and not to the
Congress, that the Constitution entrusts the responsibility to ‘take Care that the Laws be faithfully
executed.’” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 138 (1976) (per curiam)).
Here, President Trump’s alleged Tweets and public statements about fraud in the election
and the role of the Vice President in the certification process were directly related to his contentions
that: (1) the Presidential election’s outcome was tainted by fraud and other procedural
irregularities, and (2) the U.S. Department of Justice and certain state governments had failed to
adequately investigate and prosecute fraud and irregularities in the election. By Thompson’s own
logic, therefore, President Trump’s Tweets and public statements were “in furtherance of [a]
Presidential function” under the Take Care Clause—namely, assuring adequate investigation and
enforcement of federal election laws and protecting the integrity of federal elections.
In reaching its conclusion, Thompson repeatedly and erroneously focused on what it
deemed the “purpose” of President Trump’s public statements. Id. at 83. Thompon stated, for
instance, that President Trump’s Tweets were “directed at securing incumbency,” that this was
“the purpose of the January 6 Rally,” that “[t]he clear purpose” of his public statements was “to
help him ‘win,’” and that the January 6 speech “reflect[s] an electoral purpose….” Id. at 82-83
(emphases added).
But, as explained above, separate from the fact that the allegations regarding intent are
untrue, an allegedly improper purpose for an official act does not rob the act of its official
character—indeed, there is hardly an immunity case without such an allegation. “The claim of an
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unworthy purpose does not destroy the privilege.” Tenney, 341 U.S. at 377 (emphasis added). “The
motive that impelled him to do that of which the plaintiff complains is therefore wholly
immaterial.” Spalding, 161 U.S. at 499; see also, e.g., Fitzgerald, 457 U.S. at 745-46; Fisher, 80
U.S. at 350-51; Pierson, 386 U.S. at 554; Barr, 360 U.S. at 575; Klayman, 125 F. Supp. 3d at 87.
2.
Communicating with the U.S. Department of Justice about the
investigation of election fraud and considering replacing the Acting
Attorney General lie at the heart of the President’s official duties.
The President’s alleged meetings and communications with officials at the U.S.
Department of Justice also lie at the heart of his constitutional duties. Article II provides that the
President shall “take Care that the Laws be faithfully executed.” U.S. CONST. art. II, § 3. The laws
of the United States include prohibitions against election fraud and other election crimes, which
the Attorney General of the United States—who is appointed by and reports to the President—is
charged with enforcing. See, e.g., 18 U.S.C. §§ 241, 242, 611, 911, 1015(f); 52 U.S.C. §§ 10307(c),
10307(e), 20511(1), 20511(2)(A), 20511(2)(B), 30120, 30124. The Department of Justice
publishes a lengthy manual on the prosecution of federal election crimes, U.S. Dep’t of Justice,
Federal
Prosecution
of
Election
Offenses
(8th
ed.
2017),
at
https://www.justice.gov/criminal/file/1029066/download (visited August 21, 2023), which
provides that “[f]ederal jurisdiction over election fraud is easily established in elections when a
federal candidate is on the ballot.” Id. at 6. The Department of Justice has an entire “Election
Crimes Branch” within the Public Integrity Section that was created in 1980 “to oversee the Justice
Department’s nationwide response to election crimes.” U.S. Dep’t of Justice, Election Crimes
Branch, at https://www.justice.gov/criminal-pin/election-crimes-branch (visited August 21,
2023). The Election Crimes Branch also “consult[s] and support[s] … [state and local] prosecutors
and investigators around the nation.” Id.
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In short, it is indisputable that “[t]he President can enforce election laws through litigation
initiated by the Department of Justice or the Federal Election Commission, agencies over which
he has appointment authority.” Thompson, 590 F. Supp. 3d at 78.
Urging his own Department of Justice to do more to enforce the laws that it is charged with
enforcing is unquestionably an official act of the President. “[T]he President may undoubtedly, in
the performance of his constitutional duty, instruct the Attorney General to give his direct personal
attention to legal concerns of the United States elsewhere, when the interests of the Government
seem to the President to require this.” Office & Duties of Attorney General, 6 U.S. Op. Atty. Gen.
326, 335 (1854). “The Attorney General … is the hand of the President in taking care that the laws
of the United States in protection of the interests of the United States in legal proceedings and in
the prosecution of offenses be faithfully executed.” Ponzi v. Fessenden, 258 U.S. 254, 262 (1922).
Deliberating about whether to replace the Acting Attorney General of the United States is
also a core Presidential function. The Appointments Clause of Article II provides that the President
“shall nominate, and by and with the Advice and Consent of the Senate, shall appoint
Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other
Officers of the United States….” U.S. CONST. art. II, § 2, cl. 2. This clause also encompasses the
removal power. Myers v. United States, 272 U.S. 52, 122 (1926).
“During the first Congress, James Madison stated that ‘if any power whatsoever is in its
nature executive, it is the power of appointing, overseeing, and controlling those who execute the
laws.’” Prosecution for Contempt of Congress of an Executive Branch Official Who Has Asserted
a Claim of Executive Privilege, 8 U.S. Op. O.L.C. 101, 113 (1984) (quoting 1 ANNALS
OF
CONGRESS 481 (1789)); see also In re Sealed Case, 121 F.3d 729, 752–53 (D.C. Cir. 1997)
(holding Presidential deliberations about replacing the head of the Department of Agriculture
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constituted a core Presidential function: “In this case the documents in question were generated in
the course of advising the President in the exercise of his appointment and removal power, a
quintessential and nondelegable Presidential power. . . . “the President himself must directly
exercise the Presidential power of appointment or removal.”).
Although, mirroring Fitzgerald, the prosecution incorrectly alleges that an improper
purpose motivated President Trump’s thinking regarding the Department of Justice’s staffing, and
its approach to election fraud and irregularities, a President’s purpose or motive is once again
irrelevant to whether his acts fall within the “outer perimeter” of his responsibilities. Fitzgerald,
457 U.S. at 756.
3.
Meeting with state officials about the administration of a federal
election lies at the heart of the President’s official duties.
Next, meeting with state officials about the administration of a federal election in their
States, and urging them to exercise their official duties with respect to the federal election in a
certain way, constitutes another core exercise of Presidential responsibility.
The Supreme Court long ago rejected the notion that the President’s Take Care duty is
“limited to the enforcement of acts of congress or of treaties of the United States according to their
express terms,” and held that this duty “include[s] the rights, duties, and obligations growing out
of the constitution itself, our international relations, and all the protection implied by the nature of
the government under the constitution.” Cunningham v. Neagle, 135 U.S. 1, 64 (1890).
Ensuring the integrity of federal elections and urging state officials to take steps to ensure
the fairness and integrity of federal elections fall within “the rights, duties, and obligations growing
out of the constitution itself … and all the protection implied by the nature of the government
under the constitution.” Id. Fitzgerald, likewise, rejected the notion that the “outer perimeter” of
the President’s official responsibilities should be identified by parsing specific “functions” of the
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Presidency, holding that “[i]n many cases it would be difficult to determine which of the
President’s innumerable ‘functions’ encompassed a particular action,” and that the “functional”
approach “could be highly intrusive.” 457 U.S. at 756.
Ensuring the integrity of federal elections falls within the President’s official duty. “While
Presidential electors are not officers or agents of the federal government, they exercise federal
functions under, and discharge duties in virtue of authority conferred by, the Constitution of the
United States.” Burroughs v. United States, 290 U.S. 534, 545 (1934); see also Anderson v.
Celebrezze, 460 U.S. 780, 794-95 (1983) (discussing the “uniquely important national interest” in
Presidential elections). Recognizing the strong federal interest in elections, the current
Administration has issued a sweeping executive order directing all federal agencies to interface
with state and local officials to promote election integrity and ballot access. Exec. Order 14019,
Promoting Access to Voting, 86 Fed. Reg. 13623-27.
Similarly, taking steps to ensure that fraud and other irregularities do not vitiate the
outcome of a federal election also falls within the President’s responsibility. For example, federal
election law criminalizes preparing “false ballots, plac[ing] them in the box, and return[ing] them”
because that prevents “an honest count ... of the votes lawfully cast.” United States v. Saylor, 322
U.S. 385, 389 (1944). The Constitution also guarantees equal treatment of voters in federal
elections and protects them from arbitrary interference with their voting rights. Bush v. Gore, 531
U.S. 98, 104–05 (2000). Communicating with state officials to ensure “an honest count … of the
votes lawfully cast” in a federal election, Saylor, 322 U.S. at 389, thus effectuates federal rights
and flows directly from the President’s Take Care power, see Neagle, 135 U.S. at 59.
Further, the indictment alleges that the President communicated with state officials, argued
that election fraud occurred, urged them to conduct their own investigations of election fraud and
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irregularities, and to take steps to address those issues. Those are just the sorts of communications
that one would expect the Department of Justice to make if it had investigated and concluded that
there was election fraud in the relevant States. As noted above, the Election Crimes Branch of DOJ
“consult[s] and support[s] … prosecutors and investigators around the nation.” U.S. Dep’t of
Justice, Election Crimes Branch, supra. DOJ’s authority is not greater than the President’s here;
Article II “makes a single President responsible for the actions of the Executive Branch.” Free
Enter. Fund, 561 U.S. at 496-97 (quoting Clinton, 520 U.S. at 712-13 (Breyer, J., concurring in
judgment)). The President thus has the authority and obligation to communicate his concerns about
alleged fraud in federal elections to the relevant state authorities—a function at the heart of the
President’s constitutional role.
Again, the Department of Justice has recently come to the same conclusion—concluding
that communicating with state officials about their exercise of official duties with respect to a
federal election falls within the scope of the President’s official duties: “Such speech is an
important traditional function of the Presidency, and it would offend the constitutional separationof-powers principles recognized in Nixon [v. Fitzgerald] for courts to superintend the President’s
speech to his constituents and to other officeholders … merely because it concerns the conduct of
a coordinate Branch or an entity outside the federal government.” Blassingame Amicus Br. 12
(citing Council on Am. Islamic Relations v. Ballenger, 444 F.3d 659, 665 (D.C. Cir. 2006))
(emphases added).
Aware that, as a general matter, a President may communicate with federal election
officials regarding election integrity concerns, the prosecution here attempts to side-step the issue
by falsely alleging President Trump did not really believe there were outcome-determinative issues
with the election. However, probing President Trump’s internal beliefs, again, are questions of
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motive or purpose that cannot defeat immunity, elsewise the President would be “subject . . . to
trial on virtually every allegation that an action was unlawful, or was taken for a forbidden
purpose.” Fitzgerald, 457 U.S. at 756.
Last, although Thompson came to a different conclusion about the scope of the Take Care
responsibility, 590 F. Supp. 3d at 77-78, its analysis is unpersuasive. Thompson reasoned that “a
sitting President has no expressly identified duty to faithfully execute the laws surrounding the
Certification of the Electoral College.” 590 F. Supp. 3d at 78. This is wrong for several reasons.
First, by requiring the President to show an “expressly identified duty,” id. (emphasis added),
Thompson adopted the very standard that the Supreme Court rejected in Neagle, i.e., as “limited
to the enforcement of acts of congress or of treaties of the United States according to their express
terms.” 135 U.S. at 64 (emphasis added).
On the contrary, the President’s Take Care role “include[s] the rights, duties, and
obligations growing out of the constitution itself … and all the protection implied by the nature of
the government under the constitution.” Id. This includes taking steps to prevent the certification
of a federal election tainted by fraud—even if those steps are limited to encouraging other state
and federal officials to exercise their responsibilities a certain way where the President allegedly
has no direct role. Thompson likewise contravened the Supreme Court’s guidance in Fitzgerald
that the scope of Presidential immunity should not be determined by parsing the specific
“functions” of the President and demanding that immunity be closely linked to a specific function.
Second, even if the Take Care duty were limited to the “express terms” of federal statutes,
Thompson overlooked the direct connection between the President’s duty to enforce federal
statutes that safeguard the integrity of federal elections, and his communications with state officials
about that very issue. If the President or DOJ concludes that significant fraud occurred in the
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administration of a federal election, the Take Care Clause does not require them to keep that
information to themselves. Rather, it authorizes them to report that conclusion to state (and other
federal) officials and to urge them to act accordingly. Thompson concluded that “merely exhorting
non-Executive Branch officials to act in a certain way” is not “a responsibility within the scope of
the Take Care Clause.” 590 F. Supp. 3d at 78. That is wrong. But even if that were so, when
“exhorting non-Executive Branch officials to act in a certain way” addresses core federal interests
and effectuates and protects rights conferred by federal statutes, it falls within the President’s
responsibilities.
Third, Thompson’s conclusion that “[t]he President’s Take Care Clause duty … does not
extend to government officials over whom he has no power or control,” id. at 78, proves far too
much. That formulation entails that the President’s urging the Supreme Court to rule a certain way
in a case to which the United States is not a party—for example, in an amicus brief filed by the
Solicitor General—is a purely private action outside the “outer perimeter” of Executive
responsibility, simply because the President has “no power or control” over Article III judges. Id.
That is illogical. Rather, the Take Care duty must extend to exhorting other officials to exercise
their responsibilities in a manner consistent with the President’s view of the public good—
especially when the issue affects the civil rights of millions of federal voters and addresses a
“bedrock function of the United States federal government.” Doc. 1, at 2.
4.
Communicating with the President of the Senate and other Members
of Congress about the exercise of their official duties regarding federal
election certification lies at the heart of the President’s official duties.
President Trump’s communications with the Vice President in his legislative role as
President of the Senate and with other Members of Congress about the exercise of their official
duties with respect to the election certification also fall at the heart of the President’s official
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responsibility. Presidents routinely communicate with Congress to provide information and urge
them to act, and this conduct is among the most deeply rooted traditions of Presidential authority.
First, President Trump’s direct communications with the Vice President—in his legislative
role as “President of the Senate,” Doc. 1, ¶¶ 9, 53—were central to his official responsibilities.
The Constitution assigns the President extensive roles in the legislative process. Article I, § 7,
clause 2 confers on the President the veto power over bills. Clause 3 of the same section confers
on the President the veto power over joint resolutions. Article II provides that the President “shall
from time to time give to the Congress Information of the State of the Union, and recommend to
their Consideration such Measures as he shall judge necessary and expedient.” U.S. CONST. art.
II, § 3 (emphasis added). Article II, § 3 also provides that the President “may, on extraordinary
Occasions, convene both Houses, or either of them, and in Case of Disagreement between them,
with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think
proper….” Id.
Particularly relevant here, the President’s authority to “recommend to [Congress’s]
Consideration such Measures as he shall judge necessary and expedient,” id., encompasses the
President’s authority to provide information to legislators and urge them to take specific actions:
It is equally necessary for the executive branch of Government to be
able to make its views known to Congress on all matters in which it
has responsibilities, duties, and opinions. The executive agencies
have a definite requirement to express views to Congress, to make
suggestions, to request needed legislation, to draft proposed bills or
amendments, and so on…. [E]xecutive agencies have the right and
responsibility to seek to ‘influence, encourage, promote or retard
legislation’ in many clear and proper—and often extremely
effective—respects….
Legislative Activities of Executive Agencies: Hearings Before the H. Select Comm. On Lobbying
Activities, 81st Cong., pt. 10, at 2 (1950), quoted in Lobbying by Executive Branch Personnel, U.S.
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Op. O.L.C. Supp. 240, 243-44 (1961), at https://www.justice.gov/d9/olc/opinions/1961/10/31/opolc-supp-v001-p0240_0.pdf (visited August 22, 2023) (“1961 O.L.C. Op.”). “[I]n furtherance of
basic responsibilities[,] the executive branch and particularly the Chief Executive and his official
family of departmental and agency heads” are authorized to “inform and consult with the Congress
on legislative considerations, draft bills and urge in messages, speeches, reports, committee
testimony and by direct contact the passage or defeat of various measures.” H.R. Rep. No. 813138, at 52 (quoted in 1961 O.L.C. Op. at 244).
The Executive Branch endorsed these statements in 1961: “the participation of the
President in the legislative function is based on the Constitution.” 1961 O.L.C. Op. at 245. “It was
the intention of the Fathers of the Republic that the President should be an active power in
legislation .... He is made by the Constitution an important part of the legislative mechanism of
our government.” Id. (square brackets omitted) (quoting Thomas J. Norton, The Constitution of
the United States: Its Sources and Its Application 123 (special ed. 1940, 8th printing 1943)).
“The President’s right, even duty, to propose detailed legislation to Congress touching
every problem of American society, and then to speed its passage down the legislative transmission
belt, is now an accepted usage of our constitutional system.” Id. (quoting Clinton Rossiter, The
American Presidency 108 (2d rev. ed. 1960)). “This constitutionally established role in the
legislative process has become so vital through the years that the President has been aptly termed
the Chief Legislator.” Id. (citing, inter alia, Lawrence H. Chamberlain, The President, Congress
and Legislation 14 (1946)).
Here, the indictment alleges that President Trump urged both the Vice President—in his
legislative capacity as President of the Senate—and Members of Congress to exercise their
authority in the election-certification proceedings consistent with what President Trump urged was
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the public good. This conduct is manifestly part of the President’s responsibilities in our
constitutional tradition, and the question whether the President has a formal role in the electioncertification process makes no difference. As the Department of Justice recently put it, “a President
acts within the scope of his office when he urges Members of Congress to act in a particular way
with respect to a given legislative matter—even a matter, such as a congressional investigation, in
which the President has no constitutional role.” Blassingame Amicus Br. 11 (emphasis added).
In fact, there is direct historical precedent for a sitting President communicating with
Members of Congress about alleged election fraud relating to the certification of a disputed
election involving rival slates of electors. In the wake of the 1876 election, President Grant
discussed the electoral count and claims of fraud with a member of the U.S. House. See 28 THE
PAPERS
OF
ULYSSES
S.
GRANT
80–81
(ed.
John
Y.
Simon
2005),
at
https://scholarsjunction.msstate.edu/usg-volumes/27/ (visited August 22, 2023). Likewise,
President Grant transmitted to Congress a letter he received from an observer (a U.S. Senator)
whom he had requested to go to New Orleans and witness the counting of votes. Id. at 75-78.
President Grant also dispatched federal troops to Louisiana and Florida to prevent violence while
Republican-controlled election boards counted votes, and he instructed the federal troops to report
fraud in the election. See id. at 19-20. These acts, just like President Trump’s, were Presidential.
5.
Allegedly organizing contingent slates of electors falls within the
President’s official duties.
The indictment alleges that President Trump directed or approved other individuals to
organize contingent slates of electors in disputed States. Doc. 1, ¶¶ 53-69. The indictment clearly
alleges that these actions were part and parcel of President Trump’s alleged attempts to convince
the Vice President and Members of Congress to exercise their official authority in his favor on
January 6. Id. ¶ 10(b) (alleging that the contingent electors were “to transmit their false certificates
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to the Vice President and other government officials to be counted at the certification proceeding
on January 6”); id. ¶ 53 (alleging that “the submission of these fraudulent slates [of electors] would
create a fake controversy at the certification proceeding and position the Vice President—presiding
on January 6 as the President of the Senate—to supplant legitimate electors with the Defendant’s
fake electors and certify the Defendant as President”). The contingent electors’ role, the indictment
alleges, was to allow President Trump to convince the Vice President and other Members of
Congress to reject or delay the certification of certain electoral votes. See id. ¶ 86 (alleging that
President Trump attempted “to convince the Vice President to accept the Defendant’s [supposedly]
fraudulent electors, reject legitimate electoral votes, or send legitimate electoral votes to state
legislatures for review rather than count them”); see also id. ¶¶ 88, 89, 90, 91, 92, 93, 95, 101, 103
(repeatedly alleging that the slates of electors were used to attempt to convince the Vice President
to reject or delay the certification).
These actions fall within the President’s official responsibilities for at least two reasons.
First, as noted above, the “outer perimeter” of the President’s official responsibilities “include[s]
the rights, duties, and obligations growing out of the constitution itself … and all the protection
implied by the nature of the government under the constitution.” Neagle, 135 U.S. at 64. The
Constitution explicitly provides for Presidential electors and delineates their role. U.S. CONST. art.
II, §1, cl. 2. “While Presidential electors are not officers or agents of the federal government, they
exercise federal functions under, and discharge duties in virtue of authority conferred by, the
Constitution of the United States.” Burroughs, 290 U.S. at 545. Indeed, the indictment itself
describes the selection of Presidential electors as an integral part of “a bedrock function of the
United States federal government: the nation’s process of collecting, counting, and certifying the
results of the Presidential election.” Doc. 1, ¶ 4 (indictment); see also id. ¶ 9.
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Organizing slates of electors, therefore, relates directly to “the rights, duties, and
obligations growing out of the constitution itself,” Neagle, 135 U.S. at 64, and thus to the
President’s responsibilities. Without contingent slates of electors, there would be no alternative
option for the Vice President to certify, rendering futile the President’s entirely legitimate efforts
to urge Congress and the states to reconsider evidence of fraud and irregularities. Organization of
the slates of electors, in other words, advances two core Presidential functions—protecting the
integrity of federal elections, and urging Members of Congress to act in a manner consistent with
the President’s view of the public good. Thus, these actions clearly lie within the “outer perimeter”
of the President’s “official responsibilities.” Fitzgerald, 457 U.S. at 756.7
Second, as the indictment itself emphasizes, the actions of organizing slates of electors
were ancillary and preparatory to the acts of communicating with the Vice President and other
Members of Congress and urging them to exercise their official responsibilities a certain way—
which are themselves core exercises of Presidential responsibility.
Acts that are intertwined with immune actions are themselves immune from liability. For
example, it is widely accepted that “[a]bsolute prosecutorial immunity will … attach to
administrative or investigative acts necessary for a prosecutor to initiate or maintain the criminal
prosecution.” Prince v. Hicks, 198 F.3d 607, 612 (6th Cir. 1999) (quoting Ireland v. Tunis, 113
F.3d 1435, 1447 (6th Cir. 1997)); see also, e.g., Guzman–Rivera v. Rivera–Cruz, 55 F.3d 26, 29
(1st Cir. 1995) (“[A]bsolute immunity may attach even to ... administrative or investigative
7
Nor were such actions unprecedented. Quite the opposite, at the time of the alleged conduct, the
Electoral Count Act did not prohibit organizing contingent slates of electors, and such electors had
been organized previously in the disputed elections of 1876 and 1960—including, in the former
case, with the support of the sitting President. This was thus not a situation where “the President
takes measures incompatible with the express or implied will of Congress,” but a situation where
the President was acting in an area of “independent Presidential responsibility.” Youngstown Sheet
& Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring).
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activities when these functions are necessary so that a prosecutor may fulfill his function as an
officer of the court.”) (quoting Pfeiffer v. Hartford Fire Ins. Co., 929 F.2d 1484, 1490 (10th Cir.
1991)). “[T]he Supreme Court has recognized that some duties prior to the initiation of a
prosecution are also protected. Preparing to initiate a prosecution may necessitate obtaining,
reviewing and evaluating evidence; absolute immunity may attach when these functions are
necessary so that a prosecutor may fulfill his function as an officer of the court.” Snell v. Tunnell,
920 F.2d 673, 693 (10th Cir. 1990) (citing Imbler, 424 U.S. at 431 n.33). Thus, a prosecutor “who
performs functions within the continuum of initiating and presenting a criminal case … ordinarily
will be entitled to absolute immunity.” Id. So too here. President Trump’s alleged acts regarding
the contingent slates of electors “perform[ed] within the continuum” of his other immune acts, id.,
such as communicating with Congress, are also immune.
***
For these reasons, the acts alleged in the indictment lie firmly within the “outer perimeter”
of the President’s official responsibility. Therefore, they cannot form the basis of criminal charges
against President Trump.8
CONCLUSION
The Court should dismiss the indictment, with prejudice, on grounds of Presidential
immunity.
8
The indictment also alleges that President Trump filed lawsuits challenging the election outcome.
Doc. 1, ¶¶ 20, 30. Yet the indictment proclaims that it is not directly relying on such actions. Doc.
1, ¶ 3 (admitting that President Trump “was also entitled to formally challenge the results of the
election through lawful and appropriate means, such as by seeking recounts or audits of the popular
vote in states or filing lawsuits challenging ballots and procedures”) (emphasis added).
Accordingly, these are included only as acts in furtherance of the supposed conspiracy, which are
immune from prosecution for the reasons just stated, regardless of whether such lawsuits were
filed in a personal or official capacity. Moreover, the act of filing lawsuits alone, without more, is
manifestly insufficient to support any charge in the indictment.
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Dated: October 5, 2023
Respectfully submitted,
Todd Blanche, Esq. (PHV)
toddblanche@blanchelaw.com
BLANCHE LAW
99 Wall St., Suite 4460
New York, NY 10005
(212) 716-1250
/s/John F. Lauro
John F. Lauro, Esq.
D.C. Bar No. 392830
jlauro@laurosinger.com
Gregory M. Singer, Esq. (PHV)
gsinger@laurosinger.com
Filzah I. Pavalon, Esq. (PHV)
fpavalon@laurosinger.com
LAURO & SINGER
400 N. Tampa St., 15th Floor
Tampa, FL 33602
(813) 222-8990
Counsel for President Trump
CERTIFICATE OF CONFERRAL
Counsel for President Trump conferred with counsel for the prosecution, who advise the
government opposes the relief requested herein.
46
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