The US Supreme Court found in July that presidents enjoy broad immunity from prosecution.
But is a president-elect also immune?
In a 72-page filing made public Tuesday, lawyers for Donald Trump argue just that — that he’s immune from prosecution right now.
And so his hush-money conviction should be immediately dismissed, and his 34 felony convictions wiped clean, they argue.
“Following President Trumps’ overwhelming victory in the 2024 Presidential election, Presidential immunity is an unavoidable legal impediment to further proceedings in this case,” his lawyers argue.
The massive motion to dismiss mixes old grievances against New York prosecutors and the trial judge — all are portrayed as policitcally motivated — with citations from caselaw and federal policies spanning from the nineteenth century to just last month.
The filing cites the US Supreme Court’s July 1, landmark presidential immunity decision, which extends broad protections from prosecution to sitting presidents. Presidents-elect, during their brief but crucial transition to the office, warrant the same protections, Trump’s lawyers argue.
The filing also cites special counsel Jack Smith’s decision barely a week ago to drop Trump’s two federal indictments. That decision was premised on longstanding Department of Justice policy barring the prosecution of sitting presidents, Trump’s lawyers noted.
In moving to scuttle the two federal cases, the DOJ found that this ban on prosecuting presidents also applies to presidents-elect, Trump’s lawyers argued.
Trump’s lawyers, Todd Blanche and Emil Bove, are asking the trial judge, New York Supreme Court Justice Juan Merchan, to immediately dismiss the hush-money indictment.
Trump was convicted six months ago on 34 counts of falsifying business records. Jurors found he falsified Trump Organization records throughout his first year in office in order to retroactively hide a hush-money payment that silenced porn actress Stormy Daniels 11 days before the 2016 election.
Manhattan District Attorney Alvin Bragg framed the case as a conspiracy to interfere with the election. Trump was convicted after a five-week trial, and ten hours of jury deliberations over two days.
Bragg has promised to fight the claim that such a thing as presidential-elect immunity even exists.
“We believe these arguments are incorrect,” Bragg wrote in response to a November 19 defense letter. Bragg’s letter promises to counter this latest bid to dismiss the case. Prosecutors are due to file a response brief by Monday, December 9.
Only after the judge decides if the case is dismissed can Trump’s sentencing — already postponed three times — be calendared or canceled.
And even if Merchan calendars it, Trump’s lawyers have promised to halt the sentencing by immediately appealing his decision through the federal court system — to SCOTUS if necessary.
The argument that a president-elect has immunity
So why does Trump believe he enjoys presidential immunity from prosecution even now, as president-elect?
Blanche and Bove argue that there is little material difference between President Trump’s current status after his overwhelming victory in the national election and that of a sitting President following inauguration.
A second argument for special treatment of presidents-elect, made repeatedly by the two lawyers in the past month, draws on the Presidential Transition Act of 1963, which provides for the “orderly transfer of Executive powers.”
“The Presidential Transition Act of 1963 was passed ‘to promote the orderly transfer of the executive power in connection with the expiration of the term of office of a President and the inauguration of a new President,’” Trump’s lawyers write, quoting from the act.
The Act requires “all officers of the Government” to “take appropriate lawful steps to avoid or minimize distruptions that might be occasioned by the tranfer of the of the executive power,” they argue.
The brief also cites the Constitution’s Supremacy Clause, which holds federal law as taking precedence over state law.
Here, Blanche and Bove page through two centuries of caselaw, quoting, among other citations, an 1819 court ruling that found States “have no power” to “retard, impede, burden, or in any manner control” the President or other federal authorities.”
“President Trump’s status as President-elect and the soon-to-be sitting President is a legal impediment to further criminal proceedings based on the Presidential immunity doctrine and the Supremacy Clause,” they write.
In the furtherance of justice
Trump’s lawyers also argue that the case should be dismissed under New York law, which allows an indictment to be dismissed “in furtherance of justice.”
A so-called interest of justice dismissal would require Merchan to find “some compelling factor, consideration or circumstance” under which continuing a prosecution “would constitute or result in injustice.”
In considering the interest of justice, Merchan must weigh the strength and seriousness of the offense, the extent of the harm it caused, and the “history, character, and condition of the defendant.”
He must also weigh “the impact of a dismissal upon the confidence of the public in the criminal justice system.”
Blanche and Bove did not immediately respond to a request for comment on this story. A spokesperson for the Manhattan DA’s office also did not immediately respond to a request for comment.
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