To Justify His Immunity Defense,

Trump Flips the Prosecution Script

https://www.nytimes.com/2024/04/23/us/politics/immunity-trump-
election-court.html

The former president’s claim ahead of a pivotal Supreme Court hearing that he was
protecting the election system rather than subverting it is part of a pattern of shaping
his own reality.

President Donald J. Trump leaving the White House in 2017. Prosecutors have
described a criminal conspiracy by Mr. Trump to subvert the 2020 election and stay
in power.Credit...T.J. Kirkpatrick for The New York Times

By Alan Feuer
April 23, 2024, 12:03 p.m. ET
When the Supreme Court considers Donald J. Trump’s sweeping claims of executive
immunity on Thursday, it will break new legal ground, mulling for the first time the
question of whether a former president can avoid being prosecuted for things he did
in office.

But in coming up with the argument, Mr. Trump used a tactic on which he has often
leaned in his life as a businessman and politician: He flipped the facts on their head
in an effort to create a different reality.

At the core of his immunity defense is a claim that seeks to upend the story told by
federal prosecutors in an indictment charging him with plotting to overturn the 2020
election. In that indictment, prosecutors described a criminal conspiracy by Mr.
Trump to subvert the election results and stay in power.

In Mr. Trump’s telling, however, those same events are official acts that he undertook
as president to safeguard the integrity of the race and cannot be subject to
prosecution.

In many ways, Mr. Trump’s immunity claim is breathtaking. In one instance, his
lawyers went so as far as to say that a president could not be prosecuted even
for using the military to assassinate a rival unless he was first impeached.

But the wholesale rewriting of the government’s accusations — which first appeared
six months ago in Mr. Trump’s motion to dismiss the election interference case —
may be the most audacious part of his defense. It was certainly a requisite step his
lawyers had to take to advance the immunity argument.

Other courts have ruled that presidents enjoy limited immunity from civil lawsuits
for things they did as part of the formal responsibilities of their job. To extend that
legal concept to criminal charges, Mr. Trump’s lawyers needed to reframe all of the
allegations lodged against him in the election interference case as officials acts of his
presidency rather than as the actions of a candidate misusing his power.
Image
Mr. Trump’s legal team argues that his actions in 2020 were not election
interference, but part of his “official responsibilities as president” to ensure election
integrity. Credit...Doug Mills/The New York Times
The indictment filed last summer by Jack Smith, the special counsel, detailed how
Mr. Trump sought to enlist the Justice Department in validating his claims that
widespread fraud had marred the results of the election.

It set out evidence of his pressuring state lawmakers to draft false slates of electors
saying he had won in states he actually lost. And it documented how he waged a
campaign to persuade his vice president, Mike Pence, to block or delay certification
of Joseph R. Biden Jr.’s victory during a proceeding at the Capitol on Jan. 6, 2021.

But Mr. Trump’s lawyers have described all of these actions, which prosecutors claim
were crimes, very differently. The lawyers have said they were actions undertaken to
“ensure election integrity” that sat “at the heart of” Mr. Trump’s “official
responsibilities as president.”

The government pushed back from the outset, saying that such claims amounted to a
recasting of the indictment. Prosecutors assailed attempts by the former president’s
lawyers to transform what they believe were criminal offenses into examples of
presidential duty as a “gross mischaracterization” of the charges they had filed.

If Mr. Trump’s lawyers make similar arguments to the justices on Thursday, they
may face an uphill climb.

In December, a conservative appeals court in Atlanta seemed to undercut the idea

that Mr. Trump might have been acting in his official role as president when, by his
account, he policed voter fraud. The court found that federal officials did not have
much of a role to play in standing guard over state-run elections.

That decision came in response to an attempt by Mark Meadows, Mr. Trump’s

former chief of staff, to remove state election tampering charges he was facing in
Georgia to federal court. The appellate judges, in rejecting Mr. Meadows’ request,
wrote that the federal executive branch has only “limited authority to superintend the
states’ administration of elections.”

Mr. Trump’s history of creating his own reality extends far beyond the arguments
that the court will hear this week.
Image

In some of his criminal cases, Mr. Trump is using a tactic on which he has often
leaned: flipping the facts on their head in an effort to create a different
reality.Credit...Doug Mills/The New York Times

In the political sphere, for instance, he has embraced a revisionist history of the
attack on the Capitol on Jan. 6, 2021, repeatedly describing the rioters who have
been charged with storming the building as “hostages” and “political prisoners.” He
has also accused, without evidence, President Biden of orchestrating the four
criminal cases he is facing. Two of those were brought by state or local authorities,
and the two federal cases were brought by a special counsel, Mr. Smith, operating
largely independently of the Justice Department. (Mr. Trump himself has promised,
if elected again, to appoint a special prosecutor to “go after” Mr. Biden and his
family.)

Last week, Mr. Trump used the debate about immunity to issue what appeared to be
a veiled threat against Mr. Biden.
“If they take away my presidential immunity,” he wrote on social media on Friday,
“they take away Crooked Joe Biden’s presidential immunity.”

Mr. Trump has also used this flip-the-script strategy in some of his other criminal
cases, including the one in Florida in which he stands accused of illegally holding on
to classified documents after leaving office and obstructing the government’s
attempts to get them back.

One of his chief defenses in that case is a claim that he cannot be charged with
removing the documents from the White House because he designated them as his
personal property under the Presidential Records Act.

But as legal scholars and prosecutors have pointed out, Mr. Trump’s expansive
interpretation of the act inverts its meaning. The law was put in place after the
Watergate scandal not to permit former presidents to lay unfettered claim to records
from their time in office, but for the opposite reason: to ensure that most of them —
especially those containing highly classified state secrets — remain in the possession
of the government.

Still, it is in the context of the immunity defense that Mr. Trump’s most audacious
revisions of reality have taken place.

As the issue moved through two lower courts in Washington, his lawyers made a
remarkable argument. They claimed that because no president or former president
had ever been charged with a crime before Mr. Trump, it could be inferred that there
was such a thing as presidential immunity.

Prosecutors quickly disputed this view, arguing in court papers that the fact that Mr.
Trump was the only former president to have been criminally prosecuted did not
reflect “a history and tradition implying the existence of criminal immunity, but
instead the fact that most presidents have done nothing criminal.”

Alan Feuer covers extremism and political violence for The Times, focusing on the criminal
cases involving the Jan. 6 attack on the Capitol and against former President Donald J.
Trump. More about Alan Feuer

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