RESPONSE in Opposition by USA as to Donald J. Trump re [324] MOTION to Dismiss [85] Indictment, Based On Presidential Immunity Replies due by 3/14/2024. (Bratt, Jay)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO DONALD J. TRUMP’S
MOTION TO DISMISS COUNTS 1-32 BASED ON
PRESIDENTIAL IMMUNITYPage 2 Case 9:23-cr-80101-AMC Document 376 Entered on FLSD Docket 03/07/2024 Page 2 of
TABLE OF CONTENTS
I.
Background
II.
Discussion ........................................................................................................................
A.
The Indictment Does Not Base Criminal Liability on Any Official Act ......................
B.
A Former President Has No Immunity from Federal Criminal Prosecution ................
C.
III.
1.
Separation-of-powers principles do not support absolute criminal immunity
for a former President .............................................................................................
2.
The Impeachment Judgment Clause does not make Senate conviction a
prerequisite to criminal prosecution......................................................................
3.
Neither constitutional history, practice, or related doctrines support absolute
criminal immunity.................................................................................................
4.
Marbury v. Madison and its progeny do not support absolute criminal
immunity ............................................................................................................... Trump’s Absolute-Immunity-Based Motion to Dismiss Is Frivolous .........................
Conclusion ........................................................................................................................
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Defendant Donald J. Trump moves to dismiss Counts 1-32 in the Superseding Indictment
on the basis that a former President enjoys immunity from criminal prosecution for official acts
undertaken while President and that his purported immunity extends so far as to shield him from
prosecution for acts that he undertook after he left office. ECF No. 324. That frivolous claim is
offered for one transparent purpose—to delay the trial—and it fails for two independent reasons.
First, the Superseding Indictment does not charge Trump for any acts that he undertook as
President, let alone an official presidential act. The Superseding Indictment alleges that even
though Trump lost the authority to possess documents containing national defense information
after his term as President ended, he nonetheless willfully retained such documents after his
Presidency, including by conspiring with others to conceal his ongoing, unlawful possession from
his own attorneys, federal investigators, and the grand jury. Every criminal charge in the
Superseding Indictment is based upon conduct in which Trump engaged after he left office. Even
if a former President could claim some immunity from criminal prosecution for official acts—and
he cannot—Trump could not benefit from any such immunity in this case.
Second, although the Court need not reach this issue since it has no connection to the
Superseding Indictment, Trump’s novel immunity argument fails on the merits. Trump asserts that
he possesses absolute immunity from criminal prosecution for what he contends was official
presidential conduct. That categorical claim of absolute immunity for a former President conflicts
with constitutional text, separation-of-powers principles, history, and Supreme Court precedent.
See generally United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024). It would also contravene
the fundamental principle that “[n]o man in this country is so high that he is above the law.” United
States v. Lee, 106 U.S. 196, 220 (1882).
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Trump’s immunity claim here is so wholly without merit that it is difficult to understand it
except as part of a strategic effort for delay. Non-frivolous immunity claims are typically subject
to interlocutory review, and district court proceedings are stayed pending the resolution of the
appeal. Trump knows all this. But his claim is so lacking in merit that a groundless appeal should
not be permitted to have that effect. Rather than countenance such dilatory tactics, the Court
should deny the dismissal motion and certify Trump’s immunity claim as frivolous so that he
cannot use this meritless argument—disconnected from the actual charges—as the basis for an
interlocutory appeal aimed at delaying trial.
I.
Background
Following an extensive investigation, the Government presented evidence to the grand jury,
which returned a 38-count Indictment against Trump and codefendant Waltine Nauta on June 8,
2023, ECF No. 3, followed by a 42-count Superseding Indictment against Trump, Nauta, and
codefendant Carlos De Oliveira on July 27, 2023, ECF No. 85. The Superseding Indictment
alleges that Trump knew in the summer of 2021—more than six months after the end of his
Presidency—that he possessed classified information. See ECF No. 85 ¶¶ 33-37. Despite multiple
requests from the National Archives and Records Administration (“NARA”), Trump took nearly a
year to provide just 15 boxes of his missing records, falsely suggesting that there were no others.
Id. ¶¶ 38-49. Those 15 boxes of materials that NARA received from Trump on January 17, 2022,
contained almost 200 documents with classification markings. Id.
After the FBI initiated a criminal investigation and a grand jury issued a subpoena in May
2022 seeking the production of all documents with classification markings, attorneys working on
Trump’s behalf provided on June 3, 2022, an additional 38 documents bearing classification
markings as well as a certification that all boxes moved from the White House to Mar-a-Lago had
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been subjected to a “diligent search” and that “[a]ny and all responsive documents accompan[ied]”
the certification. Id. ¶¶ 65-71. That was not true because Trump had concealed boxes of
documents from his attorney’s review: Trump’s attorney searched for responsive documents in a
storage room at Mar-a-Lago, but in the weeks before June 3, Nauta—at Trump’s direction—took
out approximately 64 boxes from that room and later, with De Oliveira’s assistance, put in only
approximately 30 boxes. Id. ¶¶ 56-63. Later in June 2022, a grand jury subpoena requested
surveillance camera footage from locations including the area at Mar-a-Lago adjacent to the
storage room; after De Oliveira spoke with Trump by phone, both he and Nauta contacted the
Director of Information Technology at Mar-a-Lago (identified in the Superseding Indictment as
Trump Employee 4), with De Oliveira telling Trump Employee 4 that “the boss” wanted the server
containing security camera footage to be deleted. See id. ¶¶ 74-85. On August 8, 2022, the FBI
executed a court-authorized search warrant at Mar-a-Lago and recovered an additional documents with classification markings. Id. ¶¶ 88-90.
In the Superseding Indictment, counts 1-32 charge Trump with the unauthorized possession
and willful retention of documents relating to the national defense, in violation of 18 U.S.C.
§ 793(e). ECF No. 85 ¶¶ 92-93. As the Superseding Indictment makes clear, those counts begin
at the termination of his presidency, when he was no longer authorized to possess the classified
documents. See id. ¶ 93 (charging violations that began on January 20, 2021, and continued until
either January 17, 2022 (the date NARA received 15 boxes from Trump), June 3, 2022 (the date
that Trump attorneys provided a certification and 38 documents with classified markings), or
August 8, 2022 (the date of the search of Mar-a-Lago)). The additional counts charging Trump
likewise apply only to conduct undertaken after his Presidency. See id. ¶¶ 94-97 (conspiracy to
obstruct justice by hiding and concealing classified documents taken from the White House, in
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violation of 18 U.S.C. § 1512(k), between May and August 2022); id. ¶¶ 98-99 (knowingly
engaging in misleading conduct or corrupt persuasion toward Trump’s attorney with intent to
conceal records and documents from the grand jury, in violation of 18 U.S.C. § 1512(b)(2)(A),
between May and August 2022); id. ¶¶ 100-01 (corruptly concealing boxes of documents from
Trump’s attorney, in violation of 18 U.S.C. § 1512(c)(1), between May and August 2022); id.
¶¶ 102-03 (knowingly concealing documents from an FBI investigation and causing a false
certification to be submitted to the FBI, in violation of 18 U.S.C. § 1519, between May and August
2022); id. ¶¶ 104-05 (scheme to conceal Trump’s continued possession of documents with
classification marking, in violation of 18 U.S.C. § 1001(a)(1), between May and August 2022); id.
¶¶ 106-08 (causing a false certification to be made by a Trump attorney concerning compliance
with the May 2022 grand jury subpoena, in violation of 18 U.S.C. § 1001(a)(2), on June 3, 2022);
id. ¶¶ 113-14 (knowing corrupt persuasion of Trump Employee 4 to delete security camera footage
at Mar-a-Lago, in violation of 18 U.S.C. § 1512(b)(2)(B), between June and August 2022); id.
¶¶ 115-16 (corrupt attempt to alter or destroy security camera footage, in violation of 18 U.S.C.
§ 1512(c)(1), between June and August 2022).
II.
Discussion
Trump claims absolute immunity from federal criminal prosecution based on any conduct
that falls within the outer perimeter of his official duties as President unless Congress has
previously impeached and convicted him for the same conduct. That claim is unfounded, as the
D.C. Circuit recently held. See United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024). But
wholly apart from that claim’s lack of merit, it has no relevance where, as here, a former President
is not charged with crimes for any acts, official or otherwise, undertaken while in office. That
circumstance makes it unnecessary for the Court to address Trump’s novel legal argument. If the
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Court reaches the merits, it should conclude that Trump’s immunity claim finds no support in
constitutional text, separation-of-powers principles, history, or logic. Because Trump advances an
entirely meritless claim that could not provide him any relief even if correct, the Court should deny
his immunity claim and certify it as frivolous so that Trump may not seek further delay through an
interlocutory appeal.
A.
The Indictment Does Not Base Criminal Liability on Any Official Act
Trump’s central claim is that a former President is immune from criminal prosecution for
any official act carried out during his Presidency. That claim is deeply flawed. See infra at 6-20.
It is also entirely inapplicable in this case because the charged criminal conduct covers only
Trump’s post-presidential acts. The Superseding Indictment acknowledges that Trump “had
lawful access to the most sensitive classified documents and national defense information” while
he was President. ECF No. 85 ¶ 1. Counts 1-32 therefore charge that Trump willfully retained
such documents containing only after he served as President. See id. ¶ 93.Despite this fundamental flaw in his immunity claim, Trump contends (ECF No. 324 at 16)
that his “alleged decision to designate records as personal under the [Presidential Records Act
(“PRA”)] and cause them to be removed from the White House” constitutes an official presidential
act that “underlies Counts 1 through 32.” That contention is wrong. For one, the Superseding
Indictment nowhere alleges that Trump decided to designate records as “personal” under the PRA,
and his dismissal claim is limited only to the allegations charged in the Superseding Indictment,
which must be taken as true for purposes of his pretrial dismissal motion. See United States v.
Trump does not argue that the remaining counts, which allege crimes based on obstruction
of justice and concealment beginning in May 2022, more than a year after the end of his
Presidency, are precluded by his immunity claim.
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Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006). The Superseding Indictment thus does not charge
Trump with a crime for any acts, let alone official acts, that he took as President.
Moreover, whether Trump designated records that he removed from the White House as
“presidential” or “personal” or gave them no designation at all is irrelevant to the charged criminal
violations under Section 793(e). As the Government has explained in more detail elsewhere, see
ECF No. 373 at 5-12, the designation of records under the PRA as “presidential” or “personal” in
fact bears no relevance to the distinct question of whether the Superseding Indictment adequately
alleges violations of Section 793(e). To prove a violation of that statute, the Government must
establish that between the end of his Presidency and, depending on the count, January 17, 2022,
June 3, 2022, or August 8, 2022, Trump had unauthorized possession of documents containing
national defense information; that he willfully retained those documents; and that he failed to
deliver them to a person entitled to receive them. 18 U.S.C. § 793(e). However he designated or
did not designate the records, he is not charged with a crime for that act and it provides no basis
for an immunity claim. Because Trump cannot identify any official presidential act charged as
criminal conduct in the Superseding Indictment, the Court need not reach the merits of his
presidential immunity claim.
B.
A Former President Has No Immunity from Federal Criminal Prosecution
Trump’s immunity claim fails not only because it has no conceivable bearing on the charges
in the Superseding Indictment, but also because a former President cannot claim categorical and
absolute immunity from criminal prosecution for any and all official acts.
The President “occupies a unique position in the constitutional scheme.”
Nixon v.
Fitzgerald, 457 U.S. 731, 749 (1982). The Constitution vests the “executive Power” in the
President, id. (quoting U.S. Const. art. II, § 1), and entrusts him with supervisory and policy duties
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“of utmost discretion and sensitivity,” id. at 750. The President is “the only person who alone
composes a branch of government.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020).
The President’s duties, however, do not operate in a realm without law. They exist within a
framework of separated powers in which Congress makes laws, U.S. Const. art. I; the President
“shall take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3; and the Article III
courts exercise the judicial power to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803).
While a sitting President has temporary immunity from prosecution, an individual who has
served as President of the United States, but is no longer in office, may face investigation,
indictment, trial, and, if convicted, punishment for conduct committed during the Presidency. No
court has ever alluded to the existence of absolute criminal immunity for former Presidents, and
legal principles, historical evidence, and policy rationales demonstrate that once out of office, a
former President is subject to federal criminal prosecution like other citizens. A contrary rule
would violate the fundamental principle that no one in this country, not even the President, is above
the law.
1.
Separation-of-powers principles do not support absolute criminal
immunity for a former President
When constitutional text does not directly resolve a separation-of-powers issue implicating
Executive Branch functions, judicial analysis requires assessing (1) whether a congressionally
imposed limitation on Presidential action “prevents the Executive Branch from accomplishing its
constitutionally assigned functions,” and (2) if the law has that effect, “whether that impact is
justified by an overriding need to promote objectives within the constitutional authority of
Congress.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977); see also Fitzgerald, U.S. at 754 (“balanc[ing] the constitutional weight of the interest to be served [by an exercise of
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jurisdiction over the President] against the dangers of intrusion on the authority and functions of
the Executive Branch”); United States v. Nixon, 418 U.S. 683, 707 (1974) (weighing Executive
Branch interests in confidential communications against “the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions”).
The Framers did not provide any explicit textual source of immunity to the President. “The
text of the Constitution explicitly addresses the privileges of some federal officials, but it does not
afford the President absolute immunity.” Trump, 91 F. 4th at 1201 (quoting Trump v. Vance, S. Ct. 2412, 2434 (2020) (Thomas, J., dissenting)). In Fitzgerald, the Supreme Court held that
Presidential immunity from civil damages actions is a “functionally mandated incident of the
President’s unique office, rooted in the constitutional tradition of the separation of powers.” U.S. at 749. In the present context, a weighing of the same considerations examined in Fitzgerald
results in the opposite conclusion: Trump’s claim of absolute immunity from federal criminal
prosecution would harm, rather than promote, the separation of powers.
Fitzgerald’s concern that potential exposure to private civil damages actions would chill a
President’s decision-making, to the detriment of the vigorous exercise of executive authority, does
not apply to the context of federal criminal prosecution. In contrast to the unchecked potential for
myriad suits from private citizens, federal criminal prosecutions are conducted by the Executive
Branch itself, under the supervision of the Attorney General acting through professional
prosecutors appointed “to assist him in the discharge of his duties.” Nixon, 418 U.S. at 694. “The
decision to prosecute a criminal case . . . is made by a publicly accountable prosecutor . . . under
an ethical obligation, not only to win and zealously to advocate for his client but also to serve the
cause of justice.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 386 (2004). The government’s
actions are therefore afforded a presumption of regularity “in the absence of clear evidence to the
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contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted). No evidence
of abusive federal prosecutions of former Presidents exists, and inherent checks in the Executive
Branch itself guard against any such breakdown in our criminal justice system.
Several additional structural constraints further limit the potential for abusive prosecutions
of former Presidents. Federal felony prosecutions must be initiated by a grand jury, see U.S. Const.
amend. V, which is “a constitutional fixture in its own right” and “serv[es] as a kind of buffer or
referee between the Government and the people.” United States v. Williams, 504 U.S. 36, (1992) (citation omitted).
Grand juries are “prohibited from engaging in arbitrary fishing
expeditions and initiating investigations out of malice or an intent to harass.” Vance, 140 S. Ct. at
2428 (citation and internal quotation marks omitted). Article III courts stand ready to weed out
improper prosecutions, id., and can be expected to review any claims by a former President
“meticulous[ly].” Id. at 2430 (quoting Nixon, 418 U.S. at 702); see Armstrong, 517 U.S. at (“a prosecutor’s discretion is subject to constitutional constraints”) (citation and internal quotation
marks omitted). And prosecutions are conducted under judicial supervision, with the government
bearing the burden to prove its allegations beyond a reasonable doubt to a unanimous jury. United
States v. Gaudin, 515 U.S. 506, 510 (1995). These established safeguards against unfounded
federal prosecution sharply contrast with the potential multiplicity of private damages actions that
concerned the Fitzgerald Court. Cf. Cheney, 542 U.S. at 386 (contrasting the criminal justice
system’s protections “to filter out insubstantial legal claims” with the absence of “analogous
checks” in civil litigation).
Although Trump speculates that “[w]ithout immunity from criminal prosecution for
official acts, the presidency will cease to function,” ECF No. 324 at 16, history refutes that
suggestion. Even under Trump’s view, from the inception of the Nation, all Presidents have
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understood that the commission of criminal acts in their use of official powers could potentially
result in post-Presidency prosecution. Id. at 7 (conceding the possibility of prosecution after
impeachment and conviction). Consequently, “past Presidents have understood themselves to be
subject to impeachment and criminal liability, at least under certain circumstances, so the
possibility of chilling executive action” that Trump fears “is already in effect.” Trump, 91 F.4th
at 1196.
For instance, former President Reagan was subject to criminal investigation for
Iran/Contra, with the responsible federal prosecutor determining that the evidence did not warrant
prosecution.
Such an investigation (and potential prosecution) was consistent with the
longstanding position of the Department of Justice that a President may be prosecuted “once [his]
term is over or he is otherwise removed from office by resignation or impeachment.” A Sitting
President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 255 (2000).
Yet no evidence of abusive or overreaching federal criminal investigations of former Presidents
has emerged, let alone evidence of chill in the Oval Office arising from fear of unwarranted
prosecution. Trump’s efforts to compare the present charges to alleged acts by past Presidents that
(he asserts) could have been prosecuted is deeply flawed. See ECF No. 324 at 10-12 (citing
secondary sources). Those accusations were leveled by political opponents and do not constitute
evidence. Trump makes no effort to examine the specifics of any criminal statutes, consider unique
legal defenses, or address the threshold requirement that “the admissible evidence will probably
be sufficient to obtain and sustain a conviction” as is necessary for prosecutors to bring federal
“But because a President, and certainly a past President, is subject to prosecution in
appropriate cases, the conduct of President Reagan in the Iran/contra matter was reviewed by
Independent Counsel against the applicable statutes. It was concluded that President Reagan’s
conduct fell well short of criminality which could be successfully prosecuted.” 1 Lawrence E.
Walsh, Final Report Of The Independent Counsel For Iran/Contra Matters: Investigations and
Prosecutions, Chap. 27 (1993), available at https://irp.fas.org/offdocs/walsh/chap_27.htm.
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criminal charges. See Justice Manual § 9-27.220 (Principles of Federal Prosecution).
A powerful interest on the other side of the scales is the need to “vindicate the public
interest in an ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754. The Supreme Court has
frequently recognized the compelling public interest in enforcing the criminal law, explaining that
“the primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.”
Nixon, 418 U.S. at 707; see also Cheney, 542 U.S. at 384 (recognizing that the “commitment to
the rule of law is nowhere more profoundly manifest” than in criminal justice) (citation and ellipsis
omitted). And here, the Executive Branch’s decision to enforce laws enacted by Congress places
those branches’ constitutional roles at odds with Trump’s immunity claim. Separation-of-powers
considerations thus cut against recognizing an absolute immunity for former Presidents. From
early in our Nation’s history, it has been recognized that “the president is elected from the mass of
the people, and, on the expiration of the time for which he is elected, returns to the mass of the
people again.” United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, C.J.). To
immunize him against crimes he committed while in office, and through the use of that office,
would contradict our constitutional heritage by placing the President “above the law.” Lee, U.S. at 220; see also Vance, 140 S. Ct. at 2432 (Kavanaugh, J., concurring) (observing that the
principle that no one is above the law “applies, of course, to a President”). The Constitution
therefore cannot be interpreted to confer the immunity that Trump asserts.
The consequences of adopting Trump’s capacious immunity theory are sobering. Under
his view, a President could direct the Special Forces to murder his principal political opponent; he
could accept a bribe in exchange for steering a lucrative government contract to the bribe-payer;
and he could sell classified information to an adversary—and as long as he was not impeached by
the House and convicted by the Senate, he could act with impunity. And the enlargement of
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immunity that he offers in this case—protecting not only acts during the presidency but telescoping
outward to shield post-Presidency conduct—would be particularly dangerous, setting the stage for
all manner of reckless and forward-looking criminal acts during the final days of a President’s
term. On Trump’s view, criminal immunity would shield not only a President who sold documents
that contained classified information to an adversary while President; but also one who designated
classified documents “personal,” took them with him after his Presidency, and then arranged for
their sale and delivery after leaving office so long as he initially took the documents while he was
President. Such a result would obviously and severely undermine the compelling public interest
in the rule of law and criminal accountability, and the Court should resist Trump’s effort to
manufacture such an immunity for his conduct.
2.
The Impeachment Judgment Clause does not make Senate conviction
a prerequisite to criminal prosecution
Trump’s reliance (ECF No. 324 at 7-8) on the Impeachment Judgment Clause, U.S. Const.
art. I, § 3, cl. 7, is misplaced.3 In his view, that Clause immunizes a former President from
prosecution unless he has first been impeached by the House and convicted by the Senate for the
same or closely related official conduct that forms the basis for a federal indictment. That
argument lacks merit.
The text of the Impeachment Judgment Clause affords no support to a rule of immunity for
Presidents who have not been impeached and convicted for the same official acts. The first part
of the Clause clarifies and limits the scope of Congress’s authority to remove federal officers:
The Impeachment Judgment Clause states: “Judgment in Cases of Impeachment shall not
extend further than to removal from Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States: 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.
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Congress’s remedies are restricted to removal from office and disqualification from holding office
in the future. Punishment authority is reserved for the ordinary process of the law. The second
part of the Clause underscores that dichotomy: despite conviction after an impeachment trial, a
party convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.” But “[t]he text says nothing about nonconvicted officials.”
Trump, 91 F.4th at 1201.
Trump’s contention (ECF No. 324 at 7) that impeachment by the House and conviction by
the Senate must precede prosecution fundamentally misunderstands the distinct roles that
impeachment and criminal prosecution play. The Framers separated the legislative remedy of
impeachment from the judicial remedy of imposing criminal judgments for sound reasons. The
impeachment process is, by design, a political remedy for the dangers to governance posed by an
office holder who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.”
U.S. Const. art. II, § 4. Congress is well suited to weigh the need for and costs of removal of an
official from office by evaluating his fitness for continued or future exercise of governmental
power. That process does not depend on rigorously adjudicating facts and applying law; it is
inherently political. The courts, in contrast, operate according to law and due process, with the
proceedings subject to appellate review.
The untenable implications of an impeachment-first rule further undermine its plausibility.
If correct, all federal officers, not just the President, would have to be impeached and convicted
before prosecution. But history reflects a clear separation between the two constitutionally distinct
procedures. Although scores of federal officers have been criminally prosecuted throughout our
history, fewer than two dozen officers have ever been impeached by the House, with only eight—
all federal judges—convicted in the Senate. See Cong. Research Serv., R45769, The Impeachment
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Process in the House of Representatives (2024). And in the few cases in which both procedures
have been invoked, prosecution has regularly preceded impeachment. See, e.g., Nixon v. United
States, 506 U.S. 224 (1993) (impeachment following prosecution of Article III judge). Multiple
courts have rejected the claim that criminal prosecution may occur only after impeachment and
conviction.This case illustrates another critical flaw in Trump’s proposed impeachment-first rule: it
would unjustifiably shield a former official from criminal accountability if his criminal conduct
came to light only after the official left office. The Senate has never convicted a former official,
with Senators often expressing doubt about their power to do so, see e.g. 167 Cong. Rec. S(daily ed. Feb. 13, 2021), casting further doubt on the feasibility of Trump’s novel impeachmentfirst theory of criminal liability. And applied here, Trump’s theory would require that, before any
criminal prosecution could commence, Congress would have to impeach and convict a former
President whose alleged criminal conduct all occurred after the end of his time in office. Trump
offers no plausible explanation for such an absurd result, and there is none.
See United States v. Hastings, 681 F.2d 706, 710 (11th Cir. 1982) (rejecting the claim that
the Impeachment Judgment Clause “creates a constitutionally mandated sequence for the
prosecution of a federal judge” in which “first, Congress must act to remove him from office, and
only then can the article III courts subject him to ‘trial, judgment and punishment, according to
law’”); accord United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984); United States v.
Isaacs, 493 F.2d 1124, 1142 (7th Cir. 1974); Trump, 91 F.4th at 1201 (noting that the negativeimplication reading of the Clause to impose a mandatory sequence of impeachment first,
prosecution after, is a “‘tortured’ interpretation.’” (quoting Claiborne, 727 F.2d at 846).
To the extent Trump suggests that a different rule should apply for former Presidents, the
Constitution itself refutes the claim: the Framers provided a separate rule for presidential
impeachments in the immediately preceding clause (requiring the Chief Justice to preside, see U.S.
Const. art. I, § 3, cl. 6), but wrote no similar presidential exception into the Impeachment Judgment
Clause.
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3.
Neither constitutional history, practice, or related doctrines support
absolute criminal immunity
Other sources of constitutional interpretation likewise afford no support to Trump’s
argument. See Fitzgerald, 457 U.S. at 740 n.19, 747-748 (considering framing era statements,
history, and the common law in the separation-of-powers analysis).
The Framers devoted significant attention to ensuring that the President would be
accountable for any misconduct, and the most relevant writings provide no support for immunity
of the type that Trump claims. “James Wilson, a signer of the Constitution and future Justice of
this Court, explained to his fellow Pennsylvanians that ‘far from being above the laws, [the
President] is amenable to them in his private character as a citizen, and in his public character by
impeachment.’” Vance, 140 S. Ct. at 2434-35 (Thomas, J., dissenting) (quoting 2 Debates on the
Constitution 480 (J. Elliot ed. 1891)). “James Iredell, another future Justice, observed in the North
Carolina ratifying convention that ‘[i]f [the President] commits any crime, he is punishable by the
laws of his country.’” Id. at 2435 (Thomas, J., dissenting) (quoting 2 Debates on the Constitution
109 (J. Elliot ed. 1891)).
Likewise, Hamilton’s essays in The Federalist treated impeachment as a safeguard against
the abuse of power by an incumbent President—who would also be liable to criminal punishment
after removal or departure from office. Trump relies (ECF No. 324 at 8) on three of Hamilton’s
essays—The Federalist Nos. 65, 69 and 77 (C. Rossiter ed. 1961)—but none addresses what he
seeks to establish: that conviction by the Senate would be a necessary prerequisite to a former
President’s criminal prosecution. Hamilton’s essays instead explained why the Supreme Court
was not the proper body to serve as an impeachment court, The Federalist No. 65, how a President
differed from the British monarch, The Federalist No. 69, and that, despite the President’s
formidable powers, strong constitutional safeguards existed to protect the Nation, The Federalist
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No. 77. Hamilton’s inventory of constitutional protections did not suggest that a former President
could not be prosecuted if he was impeached but not convicted.6 Rather, the strong current that
runs through all three of Hamilton’s essays is that a former President, unlike a king, is amenable
to “the common course of law.” The Federalist No. 77, at 432; see also Trump, 91 F.4th at (refuting Trump’s reliance on The Federalist No. 69).
Historical experience also refutes Trump’s claim. Never in American history before Trump
has any President asserted that former Presidents enjoy immunity from federal criminal
prosecution for official acts. During Watergate, President Nixon was an unindicted co-conspirator
in a prosecution charging White House officials with conspiracy to defraud the United States and
to obstruct justice. Nixon, 418 U.S. at 687 n.2; see Vance, 140 S. Ct. at 2427 (recognizing that
President Nixon was “under investigation” in Watergate). Those charges rested on a range of
official acts involving the misuse of official presidential power. See United States v. Haldeman,
559 F.2d 31, 121-22 (D.C. Cir. 1976). President Nixon resigned before impeachment proceedings
began, yet no one suggested that he was immune from federal prosecution. To the contrary,
President Ford’s extension of a pardon, and President Nixon’s acceptance of it, implied recognition
that he faced potential criminal liability. See Gerald Ford, Presidential Statement at 7-8 (Sept. 8,
1974) (granting former President Nixon a “full, free, and absolute pardon . . . for all offenses
against the United States which he . . . has committed or may have committed or taken part in
during” his Presidency);7 Richard Nixon, Statement by Former President Richard Nixon at 1 (Sept.
8, 1974) (accepting “full and absolute pardon for any charges which might be brought against me
Trump’s related reliance (ECF No. 324 at 8) on Justice Alito’s dissenting opinion in
Vance, which cited Hamilton’s The Federalist Nos. 69 and 77, is similarly inapposite because it
simply made the undisputed point that a President must leave office before any prosecution may
commence. See Vance, 140 S. Ct. at 2444-45 (Alito, J., dissenting).
https://www.fordlibrarymuseum.gov/library/document/0067/1563096.pdf.
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for actions taken during the time I was President of the United States”);8 see also Burdick v. United
States, 236 U.S. 79, 90-91 (1915) (stating that acceptance of a pardon represents a “confession of
guilt”).
Despite the Watergate experience and a succession of Independent Counsels and Special
Counsels, the suggestion that a former President has absolute immunity from federal criminal
prosecution finds little mention in any source. The absence of any such absolute immunity claim
throughout our history weighs heavily against its novel recognition now. See Seila Law LLC v.
CFPB, 140 S. Ct. 2183, 2201 (2020).
The Supreme Court has previously looked to common-law judicial and prosecutorial
immunity in analyzing parallel claims of presidential immunity. See Fitzgerald, 457 U.S. at 74648; see also Vance, 140 S. Ct. at 2426. For judges and prosecutors, absolute civil immunity has
never implied criminal immunity. Trump, 91 F.4th at 1192-94. To the contrary, the Supreme
Court has reasoned that despite absolute immunity from civil damages claims, judges and
prosecutors are “subject to criminal prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S.
24, 31 (1980) (judges); Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (prosecutors). The
recognition that civil immunity does not imply criminal immunity for these officials has deep roots
in the law. E.g., Ex parte Virginia, 100 U.S. 339, 348 (1879). And exposure to criminal liability
is one of the justifications for civil immunity; despite immunity from private civil damages actions,
criminal prosecutions exist to deter and provide accountability for crimes. The Supreme Court has
thus “never held that the performance of the duties of judicial, legislative, or executive officers,
requires or contemplates the immunization of otherwise criminal deprivation of constitutional
rights.” O’Shea v. Littleton, 414 U.S. 488, 503 (1974). “On the contrary, the judicially fashioned
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doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed
by an Act of Congress.’” Id. (quoting Gravel v. United States, 408 U.S. 606, 627 (1972)).The same principle applies here. If anything, the principle has its greatest force with
respect to the President: an official whose vast constitutional powers invite the greatest potential
to inflict harm on society if he abuses his office to commit crimes—and whose violation of his
constitutional oath reflects the greatest betrayal of the Nation’s trust. “It would be a striking
paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the
Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”
Trump, 91 F.4th at 1198.
4.
Marbury v. Madison and its progeny do not support absolute criminal
immunity
Relying on the Vesting Clause, U.S. Const. art. II, § 1, cl. 1 (“The executive Power shall
be vested in a President of the United States of America”), and Marbury v. Madison, 5 U.S. (Cranch) 137 (1803), Trump argues that the discretionary acts of the President “can never be
examinable by the courts.” ECF No. 324 at 4, 19 (quoting Marbury, 5 U.S. (1 Cranch) at 166).
Drawing from Marbury and other sources the proposition that a President’s official acts are not
subject to the injunctive power of Article III courts, Trump makes the leap to claiming that trying
a former President for criminal violations committed through official acts “constitutes a core
violation of the separation of powers,” id. at 3, 7. That is a non sequitur. It is true that courts
cannot enter an injunction against a sitting President directing his performance of official acts, see
Trump suggests (ECF No. 324 at 12) that common-law principles of legislative immunity
embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity
analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The
Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at (Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model
for his immunity claim. See Trump, 91 F.4th at 1192.
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id. at 4-6 (citing authorities and Department of Justice filings), but that protection against judicial
direction of the President’s ongoing conduct of office does not suggest that courts are disabled
from holding a former President accountable when his actions violate federal criminal law.
Trump’s interpretation of Marbury cannot be squared with the long record of the Supreme
Court’s review of the lawfulness of presidential acts. See Trump, 91 F.4th at 1189-92. The
exercise of judicial power to review presidential acts dates from the early years of the Republic
and continues to this day through suits against his subordinates. See, e.g., Little v. Barreme, 6 U.S.
(2 Cranch) 170 (1804) (Marshall, C.J.); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. (1952); see also Medellin v. Texas, 552 U.S. 491 (2008). Trump concedes this point but suggests
that the review of official presidential acts through the actions against the President’s subordinates
reflects judicial incapacity to exercise any authority “directly over the president’s official acts.”
ECF No. 324 at 6. That is incorrect. Although courts properly refrain from entering injunctions
or declaratory judgments against a sitting President to control his official acts, see Franklin v.
Massachusetts, 505 U.S. 788, 826-828 (1992) (Scalia, J., concurring), that restraint does not reflect
the view that Presidents are immune from all judicial process. For example, the Supreme Court
entertained a direct challenge to a presidential order in a suit against the President in Trump v.
Hawaii, 585 U.S. 667 (2018). Upon appropriate showings, Presidents, like other citizens, must
produce official papers in response to a subpoena in a pending prosecution. See Nixon, 418 U.S.
at 707. And Presidents, like other citizens, must comply with federal criminal law. Nothing in the
respect appropriately shown to a sitting President’s discretionary official acts implies that a former
President has immunity from all personal accountability for crimes committed through the exercise
of official power.
Even Trump does not claim that Presidential discretion is a general license to violate
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applicable federal criminal law. Nor could he. Criminal conduct violates the President’s duty to
“take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. The separation of powers
involves checks and balances—not a blank check for crimes a President might commit through
official acts so long as he resigns from office, avoids impeachment and conviction, or conceals his
criminal conduct until after the expiration of his term. See, e.g., Application of 28 U.S.C. § 458 to
Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 357 n.11 (1995) (the
Constitution “confers no power in the President to receive bribes”). And contrary to Trump’s
suggestion, prohibiting a President from committing crimes does not restrict his vast range of
discretion in carrying out his official responsibilities—any more than prohibiting him from
accepting bribes in his conduct of office intrudes on his legitimate discretion. While Trump does
not claim that he had the right to violate the charged statutes, his position seeks the same result:
absolute immunity from federal prosecution for those alleged criminal acts. That claim is not
rooted in any precedent or any valid separation-of-powers principle.
Finally, Trump’s own position is fundamentally inconsistent with his reading of Marbury.
He admits that courts can examine official presidential acts if the former President has been
impeached and convicted. ECF No. 324 at 7. If the judiciary can directly examine a former
President’s official acts in that context, Article III courts plainly have the constitutional authority
and capacity to preside over such prosecutions.
C.
Trump’s Absolute-Immunity-Based Motion to Dismiss Is Frivolous
This Court should deny Trump’s absolute immunity claim and certify that it is frivolous.
Like the denial of a motion to dismiss on double-jeopardy grounds, the denial of a motion to
dismiss on immunity grounds is typically subject to interlocutory appeal because when immunity
applies, it protects against both trial and the burdens of pretrial litigation. Trump, 91 F.4th 1183-
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88; Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); see Abney v. United States, 431 U.S. 651, (1977) (double jeopardy). At the same time, the Supreme Court has recognized in the doublejeopardy context that because such an approach “may encourage some defendants to engage in
dilatory appeals,” courts of appeals could “establish summary procedures and calendars to weed
out frivolous claims of former jeopardy.” Abney, 431 U.S. at 662 n.8; see Richardson v. United
States, 468 U.S. 317, 322 (1984) (indicating that “the appealability of a double jeopardy claim
depends upon its being at least ‘colorable,’ . . . and that ‘frivolous claims of former jeopardy’ may
be weeded out by summary procedures”); id. at 326 n.6 (noting that a “colorable claim . . .
presupposes that there is some possible validity”). Following Abney, the Fifth Circuit developed
procedures for identifying and disposing of frivolous double-jeopardy claims without divesting the
trial court of jurisdiction and delaying proceedings. See United States v. Dunbar, 611 F.2d 985,
988 (5th Cir. 1980) (en banc)10 (“Henceforth, the district courts, in any denial of a double jeopardy
motion, should make written findings determining whether the motion is frivolous or nonfrivolous.
If the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not
divest the district court of jurisdiction over the case. If nonfrivolous, of course, the trial cannot
proceed until a determination is made of the merits of an appeal.”); see also United States v.
Farmer, 923 F.2d 1557, 1565 (11th Cir. 1991) (describing the Dunbar procedures).
Dunbar’s rationale that district courts may certify certain double-jeopardy claims as
frivolous and “get on with the trial” is “freely transferrable” to immunity claims. Apostol v.
Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Every circuit to have confronted the question in the
civil immunity context has recognized that “district courts may retain jurisdiction despite the filing
Dunbar was decided before the close of business on September 30, 1981, and is therefore
binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
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of an interlocutory appeal” where the district court “certif[ies] that the appeal is frivolous or
dilatory,” BancPass, Inc. v. Highway Toll Admin., L.L.C., 863 F.3d 391, 399 (5th Cir. 2017)
(collecting cases), and the Supreme Court has observed in an immunity case that “several” courts
of appeals have “embraced” a practice that “enables the district court to retain jurisdiction pending
summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings,”
Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996). District courts in the Eleventh Circuit have thus
certified immunity claims as frivolous where the claim was “a sham and asserted for the purpose
of delay,” Summit Med. Assocs., P.C. v. James, 998 F. Supp. 1339, 1342 (M.D. Ala. 1998), and
where “the only plausible motivation behind” a subsequent notice of appeal was “delay,” Andre v.
Castor, 963 F. Supp. 1169, 1171 (M.D. Fla. 1997).
Consistent with that application of Dunbar procedures in the immunity context, this Court
should certify in written findings that Trump’s claim in this case that he is absolutely immune from
criminal prosecution unless impeached by the House and convicted by the Senate is frivolous. In
doing so, the Court need not address whether it is frivolous for a former President to assert as a
general matter that he may be entitled to immunity from criminal prosecution for official acts taken
during the Presidency. Cf. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1195 (11th Cir.
2002) (acknowledging that not every argument that is “ultimately rejected” is necessarily
“frivolous”). As novel and unprecedented as that claim is, the claim that he makes here is even
more outlandish: that he is immune from crimes which, as set forth in the Superseding Indictment,
entirely post-date his term of office. Such a claim is not only unprecedented; it is entirely without
basis in law. As a result, the Court need only conclude that it is frivolous to assert such an
immunity claim in a case like this one, where none of the charges are based on such acts. In other
words, even if Trump were correct that a former President is immune for official acts—and he
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decidedly is not—that immunity claim would not entitle him to any relief in this case, rendering
his claim in this case frivolous.
A finding of frivolousness here is also strongly supported by Trump’s transparent and
persistent purpose to delay the proceedings. Indeed, although issues involving immunity should
be raised promptly, see Clinton v. Jones, 520 U.S. 681, 686 (1997) (observing that “immunity
questions should be decided at the earliest possible stage of the litigation”), Trump has waited
more than eight months since being indicted to assert his purported immunity, and the first time
he alluded to a presidential immunity claim occurred only recently in a motion seeking more time
to file pretrial motions. Compare ECF No. 242 at 3-4 (filed Dec. 20, 2023) (listing likely pretrial
motions but not mentioning an immunity claim), with ECF No. 285 at 1 (filed Feb. 6, 2024) (listing
likely pretrial motions and mentioning, for the first time, a “presidential immunity” claim).11 The
record here clearly demonstrates that Trump has raised his immunity claim solely for the purpose
of delay, and the Court should reject his effort to divest this Court of jurisdiction in a manner that
risks delaying the trial.III.
Conclusion
The Court should deny Trump’s motion to dismiss on presidential immunity grounds and
certify that his immunity claim is frivolous.
By contrast, in United States v. Trump, No. 23-cr-257 (D.D.C.), Trump informed the
district court at a status conference within a month of the Indictment that he intended to file an
“executive immunity” claim, id. at ECF No. 38 at 33-34, 52 (Aug. 28, 2023), and then filed such
claim just over two months later, see id. at ECF No. 74 (Oct. 5, 2023).
The Court should also reject Trump’s request (ECF No. 328 at 1) for “factfinding” and
“witness testimony” in support of his immunity claim because unlike such a claim in the civil
context on which he relies, see id. at 2 (citing Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023)),
“[t]here is no summary judgment procedure in criminal cases,” and the rules do not “provide for a
pre-trial determination of sufficiency of the evidence.” United States v. Critzer, 951 F.2d 306, (11th Cir. 1992).
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Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A950 Pennsylvania Avenue, N.W.
Washington, D.C. David V. Harbach, II
Assistant Special Counsel
Special Bar ID #AJames I. Pearce
Assistant Special Counsel
Special Bar ID #A
March 7,
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CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
25
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
WEST PALM BEACH DIVISION
CASE NO. 23-80101-CR-CANNON(s)
UNITED STATES OF AMERICA,
Plaintiff,
v.
DONALD J. TRUMP,
WALTINE NAUTA, and
CARLOS DE OLIVEIRA,
Defendants.
________________________________/
GOVERNMENT’S OPPOSITION TO DONALD J. TRUMP’S
MOTION TO DISMISS COUNTS 1-32 BASED ON
PRESIDENTIAL IMMUNITY
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TABLE OF CONTENTS
I.
Background ......................................................................................................................... 2
II.
Discussion ........................................................................................................................... 4
A.
The Indictment Does Not Base Criminal Liability on Any Official Act ...................... 5
B.
A Former President Has No Immunity from Federal Criminal Prosecution ................ 6
C.
III.
1.
Separation-of-powers principles do not support absolute criminal immunity
for a former President ............................................................................................. 7
2.
The Impeachment Judgment Clause does not make Senate conviction a
prerequisite to criminal prosecution...................................................................... 12
3.
Neither constitutional history, practice, or related doctrines support absolute
criminal immunity................................................................................................. 15
4.
Marbury v. Madison and its progeny do not support absolute criminal
immunity ............................................................................................................... 18
Trump’s Absolute-Immunity-Based Motion to Dismiss Is Frivolous ......................... 20
Conclusion ........................................................................................................................ 23
i
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Defendant Donald J. Trump moves to dismiss Counts 1-32 in the Superseding Indictment
on the basis that a former President enjoys immunity from criminal prosecution for official acts
undertaken while President and that his purported immunity extends so far as to shield him from
prosecution for acts that he undertook after he left office. ECF No. 324. That frivolous claim is
offered for one transparent purpose—to delay the trial—and it fails for two independent reasons.
First, the Superseding Indictment does not charge Trump for any acts that he undertook as
President, let alone an official presidential act. The Superseding Indictment alleges that even
though Trump lost the authority to possess documents containing national defense information
after his term as President ended, he nonetheless willfully retained such documents after his
Presidency, including by conspiring with others to conceal his ongoing, unlawful possession from
his own attorneys, federal investigators, and the grand jury. Every criminal charge in the
Superseding Indictment is based upon conduct in which Trump engaged after he left office. Even
if a former President could claim some immunity from criminal prosecution for official acts—and
he cannot—Trump could not benefit from any such immunity in this case.
Second, although the Court need not reach this issue since it has no connection to the
Superseding Indictment, Trump’s novel immunity argument fails on the merits. Trump asserts that
he possesses absolute immunity from criminal prosecution for what he contends was official
presidential conduct. That categorical claim of absolute immunity for a former President conflicts
with constitutional text, separation-of-powers principles, history, and Supreme Court precedent.
See generally United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024). It would also contravene
the fundamental principle that “[n]o man in this country is so high that he is above the law.” United
States v. Lee, 106 U.S. 196, 220 (1882).
1
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Trump’s immunity claim here is so wholly without merit that it is difficult to understand it
except as part of a strategic effort for delay. Non-frivolous immunity claims are typically subject
to interlocutory review, and district court proceedings are stayed pending the resolution of the
appeal. Trump knows all this. But his claim is so lacking in merit that a groundless appeal should
not be permitted to have that effect. Rather than countenance such dilatory tactics, the Court
should deny the dismissal motion and certify Trump’s immunity claim as frivolous so that he
cannot use this meritless argument—disconnected from the actual charges—as the basis for an
interlocutory appeal aimed at delaying trial.
I.
Background
Following an extensive investigation, the Government presented evidence to the grand jury,
which returned a 38-count Indictment against Trump and codefendant Waltine Nauta on June 8,
2023, ECF No. 3, followed by a 42-count Superseding Indictment against Trump, Nauta, and
codefendant Carlos De Oliveira on July 27, 2023, ECF No. 85. The Superseding Indictment
alleges that Trump knew in the summer of 2021—more than six months after the end of his
Presidency—that he possessed classified information. See ECF No. 85 ¶¶ 33-37. Despite multiple
requests from the National Archives and Records Administration (“NARA”), Trump took nearly a
year to provide just 15 boxes of his missing records, falsely suggesting that there were no others.
Id. ¶¶ 38-49. Those 15 boxes of materials that NARA received from Trump on January 17, 2022,
contained almost 200 documents with classification markings. Id.
After the FBI initiated a criminal investigation and a grand jury issued a subpoena in May
2022 seeking the production of all documents with classification markings, attorneys working on
Trump’s behalf provided on June 3, 2022, an additional 38 documents bearing classification
markings as well as a certification that all boxes moved from the White House to Mar-a-Lago had
2
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been subjected to a “diligent search” and that “[a]ny and all responsive documents accompan[ied]”
the certification. Id. ¶¶ 65-71. That was not true because Trump had concealed boxes of
documents from his attorney’s review: Trump’s attorney searched for responsive documents in a
storage room at Mar-a-Lago, but in the weeks before June 3, Nauta—at Trump’s direction—took
out approximately 64 boxes from that room and later, with De Oliveira’s assistance, put in only
approximately 30 boxes. Id. ¶¶ 56-63. Later in June 2022, a grand jury subpoena requested
surveillance camera footage from locations including the area at Mar-a-Lago adjacent to the
storage room; after De Oliveira spoke with Trump by phone, both he and Nauta contacted the
Director of Information Technology at Mar-a-Lago (identified in the Superseding Indictment as
Trump Employee 4), with De Oliveira telling Trump Employee 4 that “the boss” wanted the server
containing security camera footage to be deleted. See id. ¶¶ 74-85. On August 8, 2022, the FBI
executed a court-authorized search warrant at Mar-a-Lago and recovered an additional 102
documents with classification markings. Id. ¶¶ 88-90.
In the Superseding Indictment, counts 1-32 charge Trump with the unauthorized possession
and willful retention of documents relating to the national defense, in violation of 18 U.S.C.
§ 793(e). ECF No. 85 ¶¶ 92-93. As the Superseding Indictment makes clear, those counts begin
at the termination of his presidency, when he was no longer authorized to possess the classified
documents. See id. ¶ 93 (charging violations that began on January 20, 2021, and continued until
either January 17, 2022 (the date NARA received 15 boxes from Trump), June 3, 2022 (the date
that Trump attorneys provided a certification and 38 documents with classified markings), or
August 8, 2022 (the date of the search of Mar-a-Lago)). The additional counts charging Trump
likewise apply only to conduct undertaken after his Presidency. See id. ¶¶ 94-97 (conspiracy to
obstruct justice by hiding and concealing classified documents taken from the White House, in
3
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violation of 18 U.S.C. § 1512(k), between May and August 2022); id. ¶¶ 98-99 (knowingly
engaging in misleading conduct or corrupt persuasion toward Trump’s attorney with intent to
conceal records and documents from the grand jury, in violation of 18 U.S.C. § 1512(b)(2)(A),
between May and August 2022); id. ¶¶ 100-01 (corruptly concealing boxes of documents from
Trump’s attorney, in violation of 18 U.S.C. § 1512(c)(1), between May and August 2022); id.
¶¶ 102-03 (knowingly concealing documents from an FBI investigation and causing a false
certification to be submitted to the FBI, in violation of 18 U.S.C. § 1519, between May and August
2022); id. ¶¶ 104-05 (scheme to conceal Trump’s continued possession of documents with
classification marking, in violation of 18 U.S.C. § 1001(a)(1), between May and August 2022); id.
¶¶ 106-08 (causing a false certification to be made by a Trump attorney concerning compliance
with the May 2022 grand jury subpoena, in violation of 18 U.S.C. § 1001(a)(2), on June 3, 2022);
id. ¶¶ 113-14 (knowing corrupt persuasion of Trump Employee 4 to delete security camera footage
at Mar-a-Lago, in violation of 18 U.S.C. § 1512(b)(2)(B), between June and August 2022); id.
¶¶ 115-16 (corrupt attempt to alter or destroy security camera footage, in violation of 18 U.S.C.
§ 1512(c)(1), between June and August 2022).
II.
Discussion
Trump claims absolute immunity from federal criminal prosecution based on any conduct
that falls within the outer perimeter of his official duties as President unless Congress has
previously impeached and convicted him for the same conduct. That claim is unfounded, as the
D.C. Circuit recently held. See United States v. Trump, 91 F.4th 1173 (D.C. Cir. 2024). But
wholly apart from that claim’s lack of merit, it has no relevance where, as here, a former President
is not charged with crimes for any acts, official or otherwise, undertaken while in office. That
circumstance makes it unnecessary for the Court to address Trump’s novel legal argument. If the
4
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Court reaches the merits, it should conclude that Trump’s immunity claim finds no support in
constitutional text, separation-of-powers principles, history, or logic. Because Trump advances an
entirely meritless claim that could not provide him any relief even if correct, the Court should deny
his immunity claim and certify it as frivolous so that Trump may not seek further delay through an
interlocutory appeal.
A.
The Indictment Does Not Base Criminal Liability on Any Official Act
Trump’s central claim is that a former President is immune from criminal prosecution for
any official act carried out during his Presidency. That claim is deeply flawed. See infra at 6-20.
It is also entirely inapplicable in this case because the charged criminal conduct covers only
Trump’s post-presidential acts. The Superseding Indictment acknowledges that Trump “had
lawful access to the most sensitive classified documents and national defense information” while
he was President. ECF No. 85 ¶ 1. Counts 1-32 therefore charge that Trump willfully retained
such documents containing only after he served as President. See id. ¶ 93.1
Despite this fundamental flaw in his immunity claim, Trump contends (ECF No. 324 at 16)
that his “alleged decision to designate records as personal under the [Presidential Records Act
(“PRA”)] and cause them to be removed from the White House” constitutes an official presidential
act that “underlies Counts 1 through 32.” That contention is wrong. For one, the Superseding
Indictment nowhere alleges that Trump decided to designate records as “personal” under the PRA,
and his dismissal claim is limited only to the allegations charged in the Superseding Indictment,
which must be taken as true for purposes of his pretrial dismissal motion. See United States v.
1
Trump does not argue that the remaining counts, which allege crimes based on obstruction
of justice and concealment beginning in May 2022, more than a year after the end of his
Presidency, are precluded by his immunity claim.
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Sharpe, 438 F.3d 1257, 1263 (11th Cir. 2006). The Superseding Indictment thus does not charge
Trump with a crime for any acts, let alone official acts, that he took as President.
Moreover, whether Trump designated records that he removed from the White House as
“presidential” or “personal” or gave them no designation at all is irrelevant to the charged criminal
violations under Section 793(e). As the Government has explained in more detail elsewhere, see
ECF No. 373 at 5-12, the designation of records under the PRA as “presidential” or “personal” in
fact bears no relevance to the distinct question of whether the Superseding Indictment adequately
alleges violations of Section 793(e). To prove a violation of that statute, the Government must
establish that between the end of his Presidency and, depending on the count, January 17, 2022,
June 3, 2022, or August 8, 2022, Trump had unauthorized possession of documents containing
national defense information; that he willfully retained those documents; and that he failed to
deliver them to a person entitled to receive them. 18 U.S.C. § 793(e). However he designated or
did not designate the records, he is not charged with a crime for that act and it provides no basis
for an immunity claim. Because Trump cannot identify any official presidential act charged as
criminal conduct in the Superseding Indictment, the Court need not reach the merits of his
presidential immunity claim.
B.
A Former President Has No Immunity from Federal Criminal Prosecution
Trump’s immunity claim fails not only because it has no conceivable bearing on the charges
in the Superseding Indictment, but also because a former President cannot claim categorical and
absolute immunity from criminal prosecution for any and all official acts.
The President “occupies a unique position in the constitutional scheme.”
Nixon v.
Fitzgerald, 457 U.S. 731, 749 (1982). The Constitution vests the “executive Power” in the
President, id. (quoting U.S. Const. art. II, § 1), and entrusts him with supervisory and policy duties
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“of utmost discretion and sensitivity,” id. at 750. The President is “the only person who alone
composes a branch of government.” Trump v. Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020).
The President’s duties, however, do not operate in a realm without law. They exist within a
framework of separated powers in which Congress makes laws, U.S. Const. art. I; the President
“shall take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3; and the Article III
courts exercise the judicial power to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803).
While a sitting President has temporary immunity from prosecution, an individual who has
served as President of the United States, but is no longer in office, may face investigation,
indictment, trial, and, if convicted, punishment for conduct committed during the Presidency. No
court has ever alluded to the existence of absolute criminal immunity for former Presidents, and
legal principles, historical evidence, and policy rationales demonstrate that once out of office, a
former President is subject to federal criminal prosecution like other citizens. A contrary rule
would violate the fundamental principle that no one in this country, not even the President, is above
the law.
1.
Separation-of-powers principles do not support absolute criminal
immunity for a former President
When constitutional text does not directly resolve a separation-of-powers issue implicating
Executive Branch functions, judicial analysis requires assessing (1) whether a congressionally
imposed limitation on Presidential action “prevents the Executive Branch from accomplishing its
constitutionally assigned functions,” and (2) if the law has that effect, “whether that impact is
justified by an overriding need to promote objectives within the constitutional authority of
Congress.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 443 (1977); see also Fitzgerald, 457
U.S. at 754 (“balanc[ing] the constitutional weight of the interest to be served [by an exercise of
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jurisdiction over the President] against the dangers of intrusion on the authority and functions of
the Executive Branch”); United States v. Nixon, 418 U.S. 683, 707 (1974) (weighing Executive
Branch interests in confidential communications against “the primary constitutional duty of the
Judicial Branch to do justice in criminal prosecutions”).
The Framers did not provide any explicit textual source of immunity to the President. “The
text of the Constitution explicitly addresses the privileges of some federal officials, but it does not
afford the President absolute immunity.” Trump, 91 F. 4th at 1201 (quoting Trump v. Vance, 140
S. Ct. 2412, 2434 (2020) (Thomas, J., dissenting)). In Fitzgerald, the Supreme Court held that
Presidential immunity from civil damages actions is a “functionally mandated incident of the
President’s unique office, rooted in the constitutional tradition of the separation of powers.” 457
U.S. at 749. In the present context, a weighing of the same considerations examined in Fitzgerald
results in the opposite conclusion: Trump’s claim of absolute immunity from federal criminal
prosecution would harm, rather than promote, the separation of powers.
Fitzgerald’s concern that potential exposure to private civil damages actions would chill a
President’s decision-making, to the detriment of the vigorous exercise of executive authority, does
not apply to the context of federal criminal prosecution. In contrast to the unchecked potential for
myriad suits from private citizens, federal criminal prosecutions are conducted by the Executive
Branch itself, under the supervision of the Attorney General acting through professional
prosecutors appointed “to assist him in the discharge of his duties.” Nixon, 418 U.S. at 694. “The
decision to prosecute a criminal case . . . is made by a publicly accountable prosecutor . . . under
an ethical obligation, not only to win and zealously to advocate for his client but also to serve the
cause of justice.” Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 386 (2004). The government’s
actions are therefore afforded a presumption of regularity “in the absence of clear evidence to the
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contrary.” United States v. Armstrong, 517 U.S. 456, 464 (1996) (citation omitted). No evidence
of abusive federal prosecutions of former Presidents exists, and inherent checks in the Executive
Branch itself guard against any such breakdown in our criminal justice system.
Several additional structural constraints further limit the potential for abusive prosecutions
of former Presidents. Federal felony prosecutions must be initiated by a grand jury, see U.S. Const.
amend. V, which is “a constitutional fixture in its own right” and “serv[es] as a kind of buffer or
referee between the Government and the people.” United States v. Williams, 504 U.S. 36, 47
(1992) (citation omitted).
Grand juries are “prohibited from engaging in arbitrary fishing
expeditions and initiating investigations out of malice or an intent to harass.” Vance, 140 S. Ct. at
2428 (citation and internal quotation marks omitted). Article III courts stand ready to weed out
improper prosecutions, id., and can be expected to review any claims by a former President
“meticulous[ly].” Id. at 2430 (quoting Nixon, 418 U.S. at 702); see Armstrong, 517 U.S. at 464
(“a prosecutor’s discretion is subject to constitutional constraints”) (citation and internal quotation
marks omitted). And prosecutions are conducted under judicial supervision, with the government
bearing the burden to prove its allegations beyond a reasonable doubt to a unanimous jury. United
States v. Gaudin, 515 U.S. 506, 510 (1995). These established safeguards against unfounded
federal prosecution sharply contrast with the potential multiplicity of private damages actions that
concerned the Fitzgerald Court. Cf. Cheney, 542 U.S. at 386 (contrasting the criminal justice
system’s protections “to filter out insubstantial legal claims” with the absence of “analogous
checks” in civil litigation).
Although Trump speculates that “[w]ithout immunity from criminal prosecution for
official acts, the presidency will cease to function,” ECF No. 324 at 16, history refutes that
suggestion. Even under Trump’s view, from the inception of the Nation, all Presidents have
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understood that the commission of criminal acts in their use of official powers could potentially
result in post-Presidency prosecution. Id. at 7 (conceding the possibility of prosecution after
impeachment and conviction). Consequently, “past Presidents have understood themselves to be
subject to impeachment and criminal liability, at least under certain circumstances, so the
possibility of chilling executive action” that Trump fears “is already in effect.” Trump, 91 F.4th
at 1196.
For instance, former President Reagan was subject to criminal investigation for
Iran/Contra, with the responsible federal prosecutor determining that the evidence did not warrant
prosecution.2
Such an investigation (and potential prosecution) was consistent with the
longstanding position of the Department of Justice that a President may be prosecuted “once [his]
term is over or he is otherwise removed from office by resignation or impeachment.” A Sitting
President’s Amenability to Indictment and Criminal Prosecution, 24 Op. O.L.C. 222, 255 (2000).
Yet no evidence of abusive or overreaching federal criminal investigations of former Presidents
has emerged, let alone evidence of chill in the Oval Office arising from fear of unwarranted
prosecution. Trump’s efforts to compare the present charges to alleged acts by past Presidents that
(he asserts) could have been prosecuted is deeply flawed. See ECF No. 324 at 10-12 (citing
secondary sources). Those accusations were leveled by political opponents and do not constitute
evidence. Trump makes no effort to examine the specifics of any criminal statutes, consider unique
legal defenses, or address the threshold requirement that “the admissible evidence will probably
be sufficient to obtain and sustain a conviction” as is necessary for prosecutors to bring federal
2
“But because a President, and certainly a past President, is subject to prosecution in
appropriate cases, the conduct of President Reagan in the Iran/contra matter was reviewed by
Independent Counsel against the applicable statutes. It was concluded that President Reagan’s
conduct fell well short of criminality which could be successfully prosecuted.” 1 Lawrence E.
Walsh, Final Report Of The Independent Counsel For Iran/Contra Matters: Investigations and
Prosecutions, Chap. 27 (1993), available at https://irp.fas.org/offdocs/walsh/chap_27.htm.
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criminal charges. See Justice Manual § 9-27.220 (Principles of Federal Prosecution).
A powerful interest on the other side of the scales is the need to “vindicate the public
interest in an ongoing criminal prosecution.” Fitzgerald, 457 U.S. at 754. The Supreme Court has
frequently recognized the compelling public interest in enforcing the criminal law, explaining that
“the primary constitutional duty of the Judicial Branch [is] to do justice in criminal prosecutions.”
Nixon, 418 U.S. at 707; see also Cheney, 542 U.S. at 384 (recognizing that the “commitment to
the rule of law is nowhere more profoundly manifest” than in criminal justice) (citation and ellipsis
omitted). And here, the Executive Branch’s decision to enforce laws enacted by Congress places
those branches’ constitutional roles at odds with Trump’s immunity claim. Separation-of-powers
considerations thus cut against recognizing an absolute immunity for former Presidents. From
early in our Nation’s history, it has been recognized that “the president is elected from the mass of
the people, and, on the expiration of the time for which he is elected, returns to the mass of the
people again.” United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, C.J.). To
immunize him against crimes he committed while in office, and through the use of that office,
would contradict our constitutional heritage by placing the President “above the law.” Lee, 106
U.S. at 220; see also Vance, 140 S. Ct. at 2432 (Kavanaugh, J., concurring) (observing that the
principle that no one is above the law “applies, of course, to a President”). The Constitution
therefore cannot be interpreted to confer the immunity that Trump asserts.
The consequences of adopting Trump’s capacious immunity theory are sobering. Under
his view, a President could direct the Special Forces to murder his principal political opponent; he
could accept a bribe in exchange for steering a lucrative government contract to the bribe-payer;
and he could sell classified information to an adversary—and as long as he was not impeached by
the House and convicted by the Senate, he could act with impunity. And the enlargement of
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immunity that he offers in this case—protecting not only acts during the presidency but telescoping
outward to shield post-Presidency conduct—would be particularly dangerous, setting the stage for
all manner of reckless and forward-looking criminal acts during the final days of a President’s
term. On Trump’s view, criminal immunity would shield not only a President who sold documents
that contained classified information to an adversary while President; but also one who designated
classified documents “personal,” took them with him after his Presidency, and then arranged for
their sale and delivery after leaving office so long as he initially took the documents while he was
President. Such a result would obviously and severely undermine the compelling public interest
in the rule of law and criminal accountability, and the Court should resist Trump’s effort to
manufacture such an immunity for his conduct.
2.
The Impeachment Judgment Clause does not make Senate conviction
a prerequisite to criminal prosecution
Trump’s reliance (ECF No. 324 at 7-8) on the Impeachment Judgment Clause, U.S. Const.
art. I, § 3, cl. 7, is misplaced.3 In his view, that Clause immunizes a former President from
prosecution unless he has first been impeached by the House and convicted by the Senate for the
same or closely related official conduct that forms the basis for a federal indictment. That
argument lacks merit.
The text of the Impeachment Judgment Clause affords no support to a rule of immunity for
Presidents who have not been impeached and convicted for the same official acts. The first part
of the Clause clarifies and limits the scope of Congress’s authority to remove federal officers:
3
The Impeachment Judgment Clause states: “Judgment in Cases of Impeachment shall not
extend further than to removal from Office, and disqualification to hold and enjoy any Office of
honor, Trust or Profit under the United States: 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.
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Congress’s remedies are restricted to removal from office and disqualification from holding office
in the future. Punishment authority is reserved for the ordinary process of the law. The second
part of the Clause underscores that dichotomy: despite conviction after an impeachment trial, a
party convicted “shall nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.” But “[t]he text says nothing about nonconvicted officials.”
Trump, 91 F.4th at 1201.
Trump’s contention (ECF No. 324 at 7) that impeachment by the House and conviction by
the Senate must precede prosecution fundamentally misunderstands the distinct roles that
impeachment and criminal prosecution play. The Framers separated the legislative remedy of
impeachment from the judicial remedy of imposing criminal judgments for sound reasons. The
impeachment process is, by design, a political remedy for the dangers to governance posed by an
office holder who has committed “Treason, Bribery, or other high Crimes and Misdemeanors.”
U.S. Const. art. II, § 4. Congress is well suited to weigh the need for and costs of removal of an
official from office by evaluating his fitness for continued or future exercise of governmental
power. That process does not depend on rigorously adjudicating facts and applying law; it is
inherently political. The courts, in contrast, operate according to law and due process, with the
proceedings subject to appellate review.
The untenable implications of an impeachment-first rule further undermine its plausibility.
If correct, all federal officers, not just the President, would have to be impeached and convicted
before prosecution. But history reflects a clear separation between the two constitutionally distinct
procedures. Although scores of federal officers have been criminally prosecuted throughout our
history, fewer than two dozen officers have ever been impeached by the House, with only eight—
all federal judges—convicted in the Senate. See Cong. Research Serv., R45769, The Impeachment
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Process in the House of Representatives (2024). And in the few cases in which both procedures
have been invoked, prosecution has regularly preceded impeachment. See, e.g., Nixon v. United
States, 506 U.S. 224 (1993) (impeachment following prosecution of Article III judge). Multiple
courts have rejected the claim that criminal prosecution may occur only after impeachment and
conviction.4
This case illustrates another critical flaw in Trump’s proposed impeachment-first rule: it
would unjustifiably shield a former official from criminal accountability if his criminal conduct
came to light only after the official left office. The Senate has never convicted a former official,
with Senators often expressing doubt about their power to do so, see e.g. 167 Cong. Rec. S736
(daily ed. Feb. 13, 2021), casting further doubt on the feasibility of Trump’s novel impeachmentfirst theory of criminal liability. And applied here, Trump’s theory would require that, before any
criminal prosecution could commence, Congress would have to impeach and convict a former
President whose alleged criminal conduct all occurred after the end of his time in office. Trump
offers no plausible explanation for such an absurd result, and there is none.5
4
See United States v. Hastings, 681 F.2d 706, 710 (11th Cir. 1982) (rejecting the claim that
the Impeachment Judgment Clause “creates a constitutionally mandated sequence for the
prosecution of a federal judge” in which “first, Congress must act to remove him from office, and
only then can the article III courts subject him to ‘trial, judgment and punishment, according to
law’”); accord United States v. Claiborne, 727 F.2d 842, 845 (9th Cir. 1984); United States v.
Isaacs, 493 F.2d 1124, 1142 (7th Cir. 1974); Trump, 91 F.4th at 1201 (noting that the negativeimplication reading of the Clause to impose a mandatory sequence of impeachment first,
prosecution after, is a “‘tortured’ interpretation.’” (quoting Claiborne, 727 F.2d at 846).
5
To the extent Trump suggests that a different rule should apply for former Presidents, the
Constitution itself refutes the claim: the Framers provided a separate rule for presidential
impeachments in the immediately preceding clause (requiring the Chief Justice to preside, see U.S.
Const. art. I, § 3, cl. 6), but wrote no similar presidential exception into the Impeachment Judgment
Clause.
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3.
Neither constitutional history, practice, or related doctrines support
absolute criminal immunity
Other sources of constitutional interpretation likewise afford no support to Trump’s
argument. See Fitzgerald, 457 U.S. at 740 n.19, 747-748 (considering framing era statements,
history, and the common law in the separation-of-powers analysis).
The Framers devoted significant attention to ensuring that the President would be
accountable for any misconduct, and the most relevant writings provide no support for immunity
of the type that Trump claims. “James Wilson, a signer of the Constitution and future Justice of
this Court, explained to his fellow Pennsylvanians that ‘far from being above the laws, [the
President] is amenable to them in his private character as a citizen, and in his public character by
impeachment.’” Vance, 140 S. Ct. at 2434-35 (Thomas, J., dissenting) (quoting 2 Debates on the
Constitution 480 (J. Elliot ed. 1891)). “James Iredell, another future Justice, observed in the North
Carolina ratifying convention that ‘[i]f [the President] commits any crime, he is punishable by the
laws of his country.’” Id. at 2435 (Thomas, J., dissenting) (quoting 2 Debates on the Constitution
109 (J. Elliot ed. 1891)).
Likewise, Hamilton’s essays in The Federalist treated impeachment as a safeguard against
the abuse of power by an incumbent President—who would also be liable to criminal punishment
after removal or departure from office. Trump relies (ECF No. 324 at 8) on three of Hamilton’s
essays—The Federalist Nos. 65, 69 and 77 (C. Rossiter ed. 1961)—but none addresses what he
seeks to establish: that conviction by the Senate would be a necessary prerequisite to a former
President’s criminal prosecution. Hamilton’s essays instead explained why the Supreme Court
was not the proper body to serve as an impeachment court, The Federalist No. 65, how a President
differed from the British monarch, The Federalist No. 69, and that, despite the President’s
formidable powers, strong constitutional safeguards existed to protect the Nation, The Federalist
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No. 77. Hamilton’s inventory of constitutional protections did not suggest that a former President
could not be prosecuted if he was impeached but not convicted.6 Rather, the strong current that
runs through all three of Hamilton’s essays is that a former President, unlike a king, is amenable
to “the common course of law.” The Federalist No. 77, at 432; see also Trump, 91 F.4th at 1203
(refuting Trump’s reliance on The Federalist No. 69).
Historical experience also refutes Trump’s claim. Never in American history before Trump
has any President asserted that former Presidents enjoy immunity from federal criminal
prosecution for official acts. During Watergate, President Nixon was an unindicted co-conspirator
in a prosecution charging White House officials with conspiracy to defraud the United States and
to obstruct justice. Nixon, 418 U.S. at 687 n.2; see Vance, 140 S. Ct. at 2427 (recognizing that
President Nixon was “under investigation” in Watergate). Those charges rested on a range of
official acts involving the misuse of official presidential power. See United States v. Haldeman,
559 F.2d 31, 121-22 (D.C. Cir. 1976). President Nixon resigned before impeachment proceedings
began, yet no one suggested that he was immune from federal prosecution. To the contrary,
President Ford’s extension of a pardon, and President Nixon’s acceptance of it, implied recognition
that he faced potential criminal liability. See Gerald Ford, Presidential Statement at 7-8 (Sept. 8,
1974) (granting former President Nixon a “full, free, and absolute pardon . . . for all offenses
against the United States which he . . . has committed or may have committed or taken part in
during” his Presidency);7 Richard Nixon, Statement by Former President Richard Nixon at 1 (Sept.
8, 1974) (accepting “full and absolute pardon for any charges which might be brought against me
6
Trump’s related reliance (ECF No. 324 at 8) on Justice Alito’s dissenting opinion in
Vance, which cited Hamilton’s The Federalist Nos. 69 and 77, is similarly inapposite because it
simply made the undisputed point that a President must leave office before any prosecution may
commence. See Vance, 140 S. Ct. at 2444-45 (Alito, J., dissenting).
7
https://www.fordlibrarymuseum.gov/library/document/0067/1563096.pdf.
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for actions taken during the time I was President of the United States”);8 see also Burdick v. United
States, 236 U.S. 79, 90-91 (1915) (stating that acceptance of a pardon represents a “confession of
guilt”).
Despite the Watergate experience and a succession of Independent Counsels and Special
Counsels, the suggestion that a former President has absolute immunity from federal criminal
prosecution finds little mention in any source. The absence of any such absolute immunity claim
throughout our history weighs heavily against its novel recognition now. See Seila Law LLC v.
CFPB, 140 S. Ct. 2183, 2201 (2020).
The Supreme Court has previously looked to common-law judicial and prosecutorial
immunity in analyzing parallel claims of presidential immunity. See Fitzgerald, 457 U.S. at 74648; see also Vance, 140 S. Ct. at 2426. For judges and prosecutors, absolute civil immunity has
never implied criminal immunity. Trump, 91 F.4th at 1192-94. To the contrary, the Supreme
Court has reasoned that despite absolute immunity from civil damages claims, judges and
prosecutors are “subject to criminal prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S.
24, 31 (1980) (judges); Imbler v. Pachtman, 424 U.S. 409, 429 (1976) (prosecutors). The
recognition that civil immunity does not imply criminal immunity for these officials has deep roots
in the law. E.g., Ex parte Virginia, 100 U.S. 339, 348 (1879). And exposure to criminal liability
is one of the justifications for civil immunity; despite immunity from private civil damages actions,
criminal prosecutions exist to deter and provide accountability for crimes. The Supreme Court has
thus “never held that the performance of the duties of judicial, legislative, or executive officers,
requires or contemplates the immunization of otherwise criminal deprivation of constitutional
rights.” O’Shea v. Littleton, 414 U.S. 488, 503 (1974). “On the contrary, the judicially fashioned
8
https://www.fordlibrarymuseum.gov/library/document/0019/4520706.pdf.
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doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed
by an Act of Congress.’” Id. (quoting Gravel v. United States, 408 U.S. 606, 627 (1972)).9
The same principle applies here. If anything, the principle has its greatest force with
respect to the President: an official whose vast constitutional powers invite the greatest potential
to inflict harm on society if he abuses his office to commit crimes—and whose violation of his
constitutional oath reflects the greatest betrayal of the Nation’s trust. “It would be a striking
paradox if the President, who alone is vested with the constitutional duty to ‘take Care that the
Laws be faithfully executed,’ were the sole officer capable of defying those laws with impunity.”
Trump, 91 F.4th at 1198.
4.
Marbury v. Madison and its progeny do not support absolute criminal
immunity
Relying on the Vesting Clause, U.S. Const. art. II, § 1, cl. 1 (“The executive Power shall
be vested in a President of the United States of America”), and Marbury v. Madison, 5 U.S. (1
Cranch) 137 (1803), Trump argues that the discretionary acts of the President “can never be
examinable by the courts.” ECF No. 324 at 4, 19 (quoting Marbury, 5 U.S. (1 Cranch) at 166).
Drawing from Marbury and other sources the proposition that a President’s official acts are not
subject to the injunctive power of Article III courts, Trump makes the leap to claiming that trying
a former President for criminal violations committed through official acts “constitutes a core
violation of the separation of powers,” id. at 3, 7. That is a non sequitur. It is true that courts
cannot enter an injunction against a sitting President directing his performance of official acts, see
9
Trump suggests (ECF No. 324 at 12) that common-law principles of legislative immunity
embodied in the Speech or Debate Clause, U.S. Const. art. I, § 6, cl. 1, inform the immunity
analysis here, but that suggestion lacks support in constitutional text, history, or purpose. The
Framers omitted any comparable text protecting executive officials, see Vance, 140 S. Ct. at 2434
(Thomas, J., dissenting), and no reason exists to look to the Speech or Debate Clause as a model
for his immunity claim. See Trump, 91 F.4th at 1192.
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id. at 4-6 (citing authorities and Department of Justice filings), but that protection against judicial
direction of the President’s ongoing conduct of office does not suggest that courts are disabled
from holding a former President accountable when his actions violate federal criminal law.
Trump’s interpretation of Marbury cannot be squared with the long record of the Supreme
Court’s review of the lawfulness of presidential acts. See Trump, 91 F.4th at 1189-92. The
exercise of judicial power to review presidential acts dates from the early years of the Republic
and continues to this day through suits against his subordinates. See, e.g., Little v. Barreme, 6 U.S.
(2 Cranch) 170 (1804) (Marshall, C.J.); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579
(1952); see also Medellin v. Texas, 552 U.S. 491 (2008). Trump concedes this point but suggests
that the review of official presidential acts through the actions against the President’s subordinates
reflects judicial incapacity to exercise any authority “directly over the president’s official acts.”
ECF No. 324 at 6. That is incorrect. Although courts properly refrain from entering injunctions
or declaratory judgments against a sitting President to control his official acts, see Franklin v.
Massachusetts, 505 U.S. 788, 826-828 (1992) (Scalia, J., concurring), that restraint does not reflect
the view that Presidents are immune from all judicial process. For example, the Supreme Court
entertained a direct challenge to a presidential order in a suit against the President in Trump v.
Hawaii, 585 U.S. 667 (2018). Upon appropriate showings, Presidents, like other citizens, must
produce official papers in response to a subpoena in a pending prosecution. See Nixon, 418 U.S.
at 707. And Presidents, like other citizens, must comply with federal criminal law. Nothing in the
respect appropriately shown to a sitting President’s discretionary official acts implies that a former
President has immunity from all personal accountability for crimes committed through the exercise
of official power.
Even Trump does not claim that Presidential discretion is a general license to violate
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applicable federal criminal law. Nor could he. Criminal conduct violates the President’s duty to
“take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3. The separation of powers
involves checks and balances—not a blank check for crimes a President might commit through
official acts so long as he resigns from office, avoids impeachment and conviction, or conceals his
criminal conduct until after the expiration of his term. See, e.g., Application of 28 U.S.C. § 458 to
Presidential Appointments of Federal Judges, 19 Op. O.L.C. 350, 357 n.11 (1995) (the
Constitution “confers no power in the President to receive bribes”). And contrary to Trump’s
suggestion, prohibiting a President from committing crimes does not restrict his vast range of
discretion in carrying out his official responsibilities—any more than prohibiting him from
accepting bribes in his conduct of office intrudes on his legitimate discretion. While Trump does
not claim that he had the right to violate the charged statutes, his position seeks the same result:
absolute immunity from federal prosecution for those alleged criminal acts. That claim is not
rooted in any precedent or any valid separation-of-powers principle.
Finally, Trump’s own position is fundamentally inconsistent with his reading of Marbury.
He admits that courts can examine official presidential acts if the former President has been
impeached and convicted. ECF No. 324 at 7. If the judiciary can directly examine a former
President’s official acts in that context, Article III courts plainly have the constitutional authority
and capacity to preside over such prosecutions.
C.
Trump’s Absolute-Immunity-Based Motion to Dismiss Is Frivolous
This Court should deny Trump’s absolute immunity claim and certify that it is frivolous.
Like the denial of a motion to dismiss on double-jeopardy grounds, the denial of a motion to
dismiss on immunity grounds is typically subject to interlocutory appeal because when immunity
applies, it protects against both trial and the burdens of pretrial litigation. Trump, 91 F.4th 1183-
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88; Mitchell v. Forsyth, 472 U.S. 511, 525 (1985); see Abney v. United States, 431 U.S. 651, 662
(1977) (double jeopardy). At the same time, the Supreme Court has recognized in the doublejeopardy context that because such an approach “may encourage some defendants to engage in
dilatory appeals,” courts of appeals could “establish summary procedures and calendars to weed
out frivolous claims of former jeopardy.” Abney, 431 U.S. at 662 n.8; see Richardson v. United
States, 468 U.S. 317, 322 (1984) (indicating that “the appealability of a double jeopardy claim
depends upon its being at least ‘colorable,’ . . . and that ‘frivolous claims of former jeopardy’ may
be weeded out by summary procedures”); id. at 326 n.6 (noting that a “colorable claim . . .
presupposes that there is some possible validity”). Following Abney, the Fifth Circuit developed
procedures for identifying and disposing of frivolous double-jeopardy claims without divesting the
trial court of jurisdiction and delaying proceedings. See United States v. Dunbar, 611 F.2d 985,
988 (5th Cir. 1980) (en banc)10 (“Henceforth, the district courts, in any denial of a double jeopardy
motion, should make written findings determining whether the motion is frivolous or nonfrivolous.
If the claim is found to be frivolous, the filing of a notice of appeal by the defendant shall not
divest the district court of jurisdiction over the case. If nonfrivolous, of course, the trial cannot
proceed until a determination is made of the merits of an appeal.”); see also United States v.
Farmer, 923 F.2d 1557, 1565 (11th Cir. 1991) (describing the Dunbar procedures).
Dunbar’s rationale that district courts may certify certain double-jeopardy claims as
frivolous and “get on with the trial” is “freely transferrable” to immunity claims. Apostol v.
Gallion, 870 F.2d 1335, 1339 (7th Cir. 1989). Every circuit to have confronted the question in the
civil immunity context has recognized that “district courts may retain jurisdiction despite the filing
10
Dunbar was decided before the close of business on September 30, 1981, and is therefore
binding precedent under Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).
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of an interlocutory appeal” where the district court “certif[ies] that the appeal is frivolous or
dilatory,” BancPass, Inc. v. Highway Toll Admin., L.L.C., 863 F.3d 391, 399 (5th Cir. 2017)
(collecting cases), and the Supreme Court has observed in an immunity case that “several” courts
of appeals have “embraced” a practice that “enables the district court to retain jurisdiction pending
summary disposition of the appeal, and thereby minimizes disruption of the ongoing proceedings,”
Behrens v. Pelletier, 516 U.S. 299, 310-11 (1996). District courts in the Eleventh Circuit have thus
certified immunity claims as frivolous where the claim was “a sham and asserted for the purpose
of delay,” Summit Med. Assocs., P.C. v. James, 998 F. Supp. 1339, 1342 (M.D. Ala. 1998), and
where “the only plausible motivation behind” a subsequent notice of appeal was “delay,” Andre v.
Castor, 963 F. Supp. 1169, 1171 (M.D. Fla. 1997).
Consistent with that application of Dunbar procedures in the immunity context, this Court
should certify in written findings that Trump’s claim in this case that he is absolutely immune from
criminal prosecution unless impeached by the House and convicted by the Senate is frivolous. In
doing so, the Court need not address whether it is frivolous for a former President to assert as a
general matter that he may be entitled to immunity from criminal prosecution for official acts taken
during the Presidency. Cf. Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1195 (11th Cir.
2002) (acknowledging that not every argument that is “ultimately rejected” is necessarily
“frivolous”). As novel and unprecedented as that claim is, the claim that he makes here is even
more outlandish: that he is immune from crimes which, as set forth in the Superseding Indictment,
entirely post-date his term of office. Such a claim is not only unprecedented; it is entirely without
basis in law. As a result, the Court need only conclude that it is frivolous to assert such an
immunity claim in a case like this one, where none of the charges are based on such acts. In other
words, even if Trump were correct that a former President is immune for official acts—and he
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decidedly is not—that immunity claim would not entitle him to any relief in this case, rendering
his claim in this case frivolous.
A finding of frivolousness here is also strongly supported by Trump’s transparent and
persistent purpose to delay the proceedings. Indeed, although issues involving immunity should
be raised promptly, see Clinton v. Jones, 520 U.S. 681, 686 (1997) (observing that “immunity
questions should be decided at the earliest possible stage of the litigation”), Trump has waited
more than eight months since being indicted to assert his purported immunity, and the first time
he alluded to a presidential immunity claim occurred only recently in a motion seeking more time
to file pretrial motions. Compare ECF No. 242 at 3-4 (filed Dec. 20, 2023) (listing likely pretrial
motions but not mentioning an immunity claim), with ECF No. 285 at 1 (filed Feb. 6, 2024) (listing
likely pretrial motions and mentioning, for the first time, a “presidential immunity” claim).11 The
record here clearly demonstrates that Trump has raised his immunity claim solely for the purpose
of delay, and the Court should reject his effort to divest this Court of jurisdiction in a manner that
risks delaying the trial.12
III.
Conclusion
The Court should deny Trump’s motion to dismiss on presidential immunity grounds and
certify that his immunity claim is frivolous.
11
By contrast, in United States v. Trump, No. 23-cr-257 (D.D.C.), Trump informed the
district court at a status conference within a month of the Indictment that he intended to file an
“executive immunity” claim, id. at ECF No. 38 at 33-34, 52 (Aug. 28, 2023), and then filed such
claim just over two months later, see id. at ECF No. 74 (Oct. 5, 2023).
12
The Court should also reject Trump’s request (ECF No. 328 at 1) for “factfinding” and
“witness testimony” in support of his immunity claim because unlike such a claim in the civil
context on which he relies, see id. at 2 (citing Blassingame v. Trump, 87 F.4th 1 (D.C. Cir. 2023)),
“[t]here is no summary judgment procedure in criminal cases,” and the rules do not “provide for a
pre-trial determination of sufficiency of the evidence.” United States v. Critzer, 951 F.2d 306, 307
(11th Cir. 1992).
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Respectfully submitted,
JACK SMITH
Special Counsel
N.Y. Bar No. 2678084
By:
/s/ Jay I. Bratt
Jay I. Bratt
Counselor to the Special Counsel
Special Bar ID #A5502946
950 Pennsylvania Avenue, N.W.
Washington, D.C. 20530
David V. Harbach, II
Assistant Special Counsel
Special Bar ID #A5503068
James I. Pearce
Assistant Special Counsel
Special Bar ID #A5503077
March 7, 2024
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CERTIFICATE OF SERVICE
I hereby certify that on March 7, 2024, I electronically filed the foregoing document with
the Clerk of the Court using CM/ECF, which in turn serves counsel of record via transmission of
Notices of Electronic Filing.
/s/ Jay I. Bratt
Jay I. Bratt
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