"He will be destroyed on cross-examination": Experts trash Trump's doomed "Richard Nixon" defense

Trump claims he has presidential immunity in Jan. 6 case. The Supreme Court already rejected a similar claim

By Tatyana Tandanpolie

Staff Writer

Published October 6, 2023 11:23AM (EDT)

Former U.S. President Donald Trump speaks to the media on the third day of his civil fraud trial at New York State Supreme Court on October 04, 2023 in New York City. (Spencer Platt/Getty Images)
Former U.S. President Donald Trump speaks to the media on the third day of his civil fraud trial at New York State Supreme Court on October 04, 2023 in New York City. (Spencer Platt/Getty Images)

Attorneys for Donald Trump on Thursday requested that a federal judge axe the entirety of special counsel Jack Smith's criminal indictment accusing the former president of attempting to overturn the 2020 presidential election.

Trump's 52-page motion to dismiss the charges hinges on an untested legal argument that he had "presidential immunity" shielding him from any criminal charges connected to his actions while in office, The Messenger reported.

"Breaking 234 years of precedent, the incumbent administration has charged President Trump for acts that lie not just within the 'outer perimeter,' but at the heart of his official responsibilities as President," Trump's lawyers wrote in the filing. "In doing so, the prosecution does not, and cannot, argue that President Trump’s efforts to ensure election integrity, and to advocate for the same, were outside the scope of his duties."

Trump faces four federal felony counts in the case, which alleges he obstructed the 2020 election in a series of events, including the Jan. 6 Capitol attack. He has pleaded not guilty to all charges. The trial is slated to begin on March 4, 2024 in Washington, D.C.

Thursday's motion represents the latest attempt from the GOP frontrunner to undermine the criminal charges against him and stall his trials as he carries out his 2024 bid for the Oval Office.

In South Florida, where the special counsel brought 40 charges against Trump over his retention of national security documents post-presidency, Trump's lawyers late Wednesday night requested a postponement for the federal trial until after the 2024 election. Jury selection in that case is currently scheduled for May 2024, but the former president's legal team has argued that date conflicts with the D.C. criminal case that he's now pushing to have thrown out. 

Trump is also seeking the dismissal of his criminal charges in Fulton County District Attorney Fani Willis' sprawling racketeering indictment. In that case, the former president's attorneys have taken to piggybacking onto the motions from some of the 18 other co-defendants charged in the case. 

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The latest Washington, D.C. filing also suggests Trump's legal team may try to move the case beyond U.S. District Court Judge Tanya Chutkan's bench as the arguments follow months of signals from his lawyers that they believe they can succeed in getting the criminal charges thrown out on appeal before the Supreme Court.

One facet of that defense appears in a claim Trump's attorneys are putting forward that presidential immunity has a foundation in the U.S. Constitution. They contend that "impeachment and conviction by the Senate provide the exclusive method of proceeding against a president for crimes in office."

"Here, President Trump was acquitted by the Senate for the same course of conduct," they write in the filing, referencing the early 2021 Senate trial following the Jan. 6 insurrection that concluded with a 57-43 vote against Trump but fell short of the two-thirds majority needed to convict.

"No court has addressed whether such Presidential immunity includes immunity from criminal prosecution for the President’s official act," the attorneys said, adding, "In addressing this question, the Court should consider the Constitution’s text, structure, and original meaning, historical practice, the Court’s precedents and immunity doctrines, and considerations of public policy."

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Legal experts poured cold water on Trump's latest bid, likening his argument to that of disgraced former President Richard Nixon.

"This is the big one folks," national security lawyer Bradley Moss wrote on X, formerly Twitter. "Trump really did it: he is arguing that a president is immune from criminal prosecution. Ever."

"Just a reminder that Nixon's lawyers tried arguing before the Supreme Court that an *incumbent* president is essentially a King for 4-8 years," Moss added. "The Supreme Court disagreed."

"The cover page of Trump's motion to dismiss the DC prosecution says it all, revealing the weakness of his position," former U.S. Attorney Joyce Vance tweeted. "Presidents don't get immunity from prosecution for trying to steal an election any more than the next guy. Shorthand: no man is above the law."

Watergate prosecutor Jill Wine-Banks smacked down Trump's presidential immunity argument during a Thursday appearance on MSNBC, asserting that the former president would be “destroyed on cross-examination” if he were to use it at trial.

The argument, she noted, would only work if the former president “was doing something presidential, something within his job description” when he did what he's alleged to have. 

"We've already seen an example of a court saying, 'It's not within your job description to defame E. Jean Carroll. It just isn't," Wine-Banks said. "I think [a court] would say that the conduct alleged in this particular indictment goes well beyond anything that is part of his job as president. It was his job as a candidate, and candidate is a different thing.”

Wines-Banks added that Trump can't claim he was “acting as president when he was trying to take down the election.”

“That is a question of fact that will have to be determined,” she continued. “The jury will say, ‘Yes, he was trying to take it down.’ He’s saying, ‘No I wasn’t, I was trying to protect election integrity.’ There is no evidence that supports that, and if he testifies that, he will be destroyed on cross-examination.”

But former U.S. Attorney Harry Litman cautioned that unlike Trump's other "slapdash quality" court filings, this "relatively polished" filing appears to be aimed at convincing the Trump-packed Supreme Court.

"Its intended audience is conservative judges," Litman wrote.

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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Aggregate Donald Trump Jack Smith Politics Tanya Chutkan