On Jan. 2, Donald Trump’s legal team filed his last official salvo with the Court of Appeals for the D.C. Circuit, claiming on appeal that he is entitled to presidential immunity for plotting to overturn the 2020 election.
Aside from glaring factual gaps, Trump’s reply brief incredibly attempts to relitigate the 2020 election three years later, after more than 60 courts already rejected his claims. This is not beating a dead horse, it’s trying to breathe life into long decayed and necrotic tissue.
Using immunity to re-litigate the 2020 election
Trump’s appellate brief argues that there are “vigorous disputes and questions about the actual outcome of the 2020 Presidential election — disputes that date back to November 2020, continue to this day in our nation’s political discourse, and are based on extensive information about widespread fraud and irregularities in the 2020 election,” citing, outrageously, an anonymous “report” Trump posted on his own Truth Social account as supporting authority.
It's obvious to anyone outside the Fox bubble that the only reason the 2020 election is still “in our nation’s political discourse,” is because Trump keeps it there. Trump obviously knows that repeating a falsehood often enough, with enough media attention, will make it true, for at least some cohort of uneducated voters.
Trump also posted his “2020 election report” on Truth Social on January 2, 2024, the same day his reply brief was due, suggesting it was written more for Fox News and right-wing pundits than the appellate court.
The “report” Trump cites for authority, titled, “A Summary of Election Fraud in the 2020 Presidential Election in the Swing States” is anonymous and unsigned. It begins:
It has often been repeated there is “no evidence” of fraud in the 2020 Election. In actuality, there is no evidence Joe Biden won…
From here, the “report” goes on to relitigate the results of the 2020 election in the states of Georgia, Wisconsin, Pennsylvania, Arizona and Michigan.
Team Trump continues to lie about American history
Trump insists that the lack of prior, similar cases proves that presidents are immune from criminal prosecution when they break the law. His brief argues that, “The 234-year unbroken tradition of not prosecuting Presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence” that presidents are immune from prosecution. As examples, he cites Reagan’s involvement in Iran-Contra, Clinton’s pardon of Marc Rich, Bush’s claims of “weapons of mass destruction,” and Nixon’s firing of Archibald Cox, none of which led to criminal prosecution.
At the risk of stating the obvious, none of these acts were crimes. And all of them were undertaken pursuant to obvious powers of the presidency.
In contrast, Trump is charged in part with conspiring to defraud the government and obstruction, which are crimes. He also attempted to change the outcome of a federal election to keep himself in power, which is not a recognized presidential function. As the Bipartisan Policy Center explains, the Constitution gives states responsibility for elections, and reserves a role for Congress, not the president. Trump claims it was his duty to investigate a fraudulent election, but by Constitutional design, presidents have no role in conducting, investigating or overseeing federal elections.
Team Trump is in for a setback, and they know it
Practicing his bravado on the way to the courthouse, Trump claims that the “ridiculous Deranged Jack Smith case on Immunity” should be thrown out, because “the most respected legal minds in the Country say I am fully entitled” to immunity from criminal prosecution.
He stops short of identifying which respected legal minds support his immunity claims; My Pillow Guy must not be recognized as a legal mind, respected or otherwise.
Despite fact-challenged MAGA supporters who want to see Trump pull the trigger, few legal experts agree that presidents have criminal impunity to stand on Fifth Avenue and shoot. On the contrary, most prosecutors, judges, and amici briefs filed on appeal find Trump’s criminal immunity claims both preposterous and dangerous.
George Washington, in his farewell address, counseled his new and vulnerable nation that, “The very idea of the right and power of the people to establish government presupposes the duty of every individual to obey the established government.”
Washington also warned that a future usurper like Trump would try to backdoor his efforts by trying to obstruct official proceedings, warning us about “obstructions to the execution of the laws, including group arrangements to counteract the regular deliberation and action of the constituted authorities…”
It’s as if Washington saw Trump’s claims of presidential immunity, his national gaslighting campaign, and his mob attacking the U.S. capitol on J6 through a crystal ball.
No doubt the appellate court will heed Washington’s words next week. In America, no man is above the law.
Sabrina Haake is a 25-year litigator specializing in 1st and 14th Amendment defense. Her columns appear in OutSFL, Chicago Tribune, Salon, State Affairs, and Howey Politics. She and her wife split their time between South Florida and Chicago. Follow her on substack.