By Zachary Cohen, Katelyn Polantz, Jason Morris and Nick Valencia, CNN
(CNN) — Former President Donald Trump is seeking to have the sweeping criminal conspiracy case against him in Georgia thrown out by arguing he is protected from prosecution under presidential immunity.
Trump’s immunity claims in the Georgia case, filed on Monday as part of a motion to dismiss state-level criminal charges against the former president, are similar to those argued by his defense team in the federal election subversion case.
“The indictment in this case charges President Trump for acts that lie at the heart of his official responsibilities as President. The indictment is barred by presidential immunity and should be dismissed with prejudice,” the motion filed by Trump’s lawyer in the Georgia case reads.
Monday’s filing in the Georgia case reiterates what the former president’s lawyers have repeatedly asserted – that Trump was working in his official capacity as president when he allegedly undermined the 2020 election results and therefore has immunity.
Trump’s attorney argues that the specific acts in Fulton County District Attorney Fani Willis’ indictment “lie squarely within the ‘outer perimeter’ of the President’s official duties.”
This includes Trump’s public statements about the administration of the 2020 election, communicating with the Justice Department about investigations related to the election and “urging the Vice President and Members of Congress to exercise their official responsibilities consistent with the President’s view of the public good.”
“Organizing slates of electors in furtherance of that effort to have Congress exercise its responsibilities falls within the President’s official duties as well,” Trump’s lawyer argues.
As such, Trump’s indictment in both the Georgia and federal case are unconstitutional because presidents cannot be criminally prosecuted for “official acts” unless they are impeached and convicted by the US Senate.
Steve Sadow, lead counsel for Trump in the Fulton County case, also noted in a statement they previously sought to dismiss the case on First Amendment grounds, which the courts haven’t yet decided.
On Tuesday, the DC US Circuit Court of Appeals will hear arguments by attorneys for Trump and special counsel Jack Smith over the same two claims of immunity, a hearing Trump himself is set to attend.
Monday is the deadline for pre-trial motions to be filed in the sprawling Georgia racketeering case against Trump and the remaining co-defendants accused of helping the former president try to overturn the 2020’s election results in the state.
Fulton County prosecutors said they want the trial to begin in early August 2024, which could potentially be directly in the middle of Trump’s presidential election campaign if he wins the Republican nomination.
Supremacy clause arguments
Trump’s legal team is invoking the supremacy clause of the US Constitution to try to shield him from criminal prosecution in Georgia.
In court filings, Trump’s team argues the state-level justice system can’t interfere with federal duties. This argument, if successful, could further expand the protections around the presidency, even more so than what Trump argues related to protections he believes he should have under presidential immunity.
“The Supreme Court has held that states cannot use their criminal law to interfere with actions that are inseparably connected to the functioning of the national government. There can be no doubt that the election of the President of the United States is so connected to the function of the national government,” his attorneys wrote.
Trump’s legal team also filed a motion to dismiss the charges against him on double jeopardy grounds, saying that the indictment should be dismissed because he was already impeached and tried in the Senate, where he was acquitted for his role in the January 6, 2021, riots.
‘Lacked fair notice’ of possible criminal activity
In addition, Trump’s lawyers argue the Georgia case should be dismissed on due process grounds, claiming the former president “lacked fair notice” that his baseless claims about widespread election fraud could be criminalized.
“Our country has a longstanding tradition of forceful political advocacy regarding widespread allegations of fraud and irregularities in a long list of Presidential elections throughout our history, therefore, President Trump lacked fair notice that his advocacy in the instance of the 2020 Presidential Election could be criminalized,” Trump’s lawyers write.
“Due process bars courts from applying a novel construction of a criminal statute to conduct that neither the statute nor any prior judicial decision has fairly disclosed to be within its scope,” they add.
This story has been updated with additional details.
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