When the Supreme Court considers Donald J. Trump's far-reaching claims of presidential immunity on Thursday, it will consider for the first time the question of whether former presidents can avoid prosecution for acts they committed while in office, and new legal A foundation will be built.
But in making this argument, Mr. Trump used a tactic he has relied on throughout his career as a businessman and politician. It's about turning facts upside down to create a different reality.
At the heart of his immunity defense is an argument that seeks to undermine the story federal prosecutors told in the indictment accusing him of plotting to overturn the 2020 election. In their indictment, prosecutors described a criminal conspiracy by Mr. Trump to overturn the election results and maintain power.
However, Trump has said that these events were official acts of his presidency to protect the integrity of the race and are not subject to prosecution.
In many ways, Trump's immunity claims are breathtaking. In one instance, the president's lawyers went so far as to say that unless the president was impeached, he could not be prosecuted, even if he used the military to assassinate a rival.
But the sweeping rewrite of the government's charges, which he first unveiled six months ago in his motion to dismiss the election interference lawsuit, may be the boldest part of Trump's defense. unknown. It was certainly a necessary step that his lawyers had to take to advance the immunity argument.
Other courts have held that presidents have limited immunity from civil lawsuits for actions taken as part of their official responsibilities. Extending this legal concept to criminal charges, Mr. Trump's lawyers argue that all allegations brought against Mr. Trump in election interference cases are based on the president's actions, rather than the actions of the candidate abusing his power. It was necessary to reconstruct it as an act of a certain employee.
The indictment filed by special counsel Jack Smith last summer details how Trump enlisted the help of the Justice Department to substantiate his claims that widespread fraud harmed the election results. It details what was attempted.
The documents revealed evidence that he pressured state legislators to create false electoral rolls that said he won in states he actually lost. and how he waged a campaign to persuade Vice President Mike Pence to block or delay the certification of Joseph R. Biden Jr.'s victory during a hearing at the Capitol on January 6, 2021. Documented.
But Mr. Trump's lawyers have a very different view of all these acts, which prosecutors say are crimes. The lawyers argued that these steps were taken to “ensure the integrity of the election,” which is “central” to Trump's “official responsibilities as president.”
From the beginning, the government objected to such claims, arguing that they were tantamount to rewriting the charges. Prosecutors denounced the former president's lawyers' attempts to turn what they believe to be criminal offenses into an example of presidential duties as a “serious misunderstanding” of the charges they filed.
Trump's lawyers could face a predicament if they make a similar argument to the justices on Thursday.
In December, a conservative appeals court in Atlanta appeared to overturn the idea that Trump was acting in an official role as president when he was cracking down on voter fraud, according to his version. The court found that federal officials played a limited role in monitoring state elections.
The decision came in response to Trump's former chief of staff, Mark Meadows, seeking to dismiss state election fraud charges filed in federal court in Georgia. Appellate judges rejected Meadows' request, writing that the federal executive branch has “limited authority to oversee each state's election administration.”
Mr. Trump's history of creating his own reality extends far beyond the arguments heard in court this week.
For example, in the political field, he supported historical revisionism regarding the January 6, 2021, attack on the Capitol, repeatedly referring to the rioters charged with the attack as “hostages” and “political prisoners.” He also accused, without evidence, of orchestrating four criminal cases facing President Biden. Two of the cases were brought by state or local governments, and two federal cases were brought by Mr. Smith, the special counsel, who operates largely independently. Department of Justice. (Trump himself has promised, if re-elected, to appoint a special counsel to “go after” Biden and his family.)
Trump used the immunity debate last week to make what appeared to be a veiled threat against Biden.
“If they take away my presidential privileges, they'll take away Crooked Joe Biden's presidential privileges, too,” he wrote on social media Friday.
Trump has used this flipping strategy in other criminal cases, including a Florida case in which he is accused of illegally retaining classified documents after leaving office and obstructing the government's efforts to return them. Also included.
One of his main defenses in the case is that he can't be prosecuted for removing the documents from the White House because he designated them as his personal property under a law known as the Presidential Records Act.
But as legal scholars and prosecutors have pointed out, Trump's expansive interpretation of the law reverses its meaning. This law was enacted after the Watergate scandal to prevent former presidents from freely claiming records from their time in office; This is to ensure that the data is preserved. Government property.
Yet it is in the context of immune defense that Mr. Trump's boldest reality correction has occurred.
As the matter made its way through two lower courts in Washington, his lawyers made notable arguments. They argued that because no president or former president had ever been charged with a crime before Trump, they could infer that there was some kind of presidential immunity.
Prosecutors said in court papers that the fact that Trump is the only former president to face criminal charges “does not reflect history and tradition that suggests the existence of impunity; rather, most presidents face criminal charges.” “It reflects the fact that there is immunity,” he said, quickly challenging this view. I haven't done anything criminal. ”
