Introduction
Defendant Donald J. Trump moves to dismiss the indictment, asking the Court to afford
him absolute immunity from criminal prosecution for what he expansively claims was official
conduct during his presidency. ECF No. 74 (“Mot.”). That novel approach to immunity would
contravene the fundamental principle that “[n]o man in this country is so high that he is above the
law.” United States v. Lee, 106 U.S. 196, 220 (1882). The defendant is not above the law. He is
subject to the federal criminal laws like more than 330 million other Americans, including
Members of Congress, federal judges, and everyday citizens. None of the sources the defendant
points to in his motion—the Constitution’s text and structure, history and tradition, or Supreme
Court precedent—supports the absolute immunity he asks the Court to create for him. In staking
his claim, he purports (Mot. 29) to draw a parallel between his fraudulent efforts to overturn the
results of an election that he lost and the likes of Abraham Lincoln’s Gettysburg Address and
George Washington’s Farewell Address. These things are not alike. The more apt parallel the
defendant identifies (Mot. 17-18) is to judges, who, like a former president, enjoy absolute
immunity from civil damages liability for certain conduct but who are “subject to criminal
prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S. 24, 31 (1980). The same is true
for the defendant. For the reasons set forth below, the defendant’s motion to dismiss the indictment
based upon presidential immunity should be denied Factual and Procedural Background
A grand jury charged the defendant in a four-count indictment. ECF No. 1. The defendant
moved to dismiss the indictment on the ground that he “is absolutely immune from prosecution.”
Mot. 1. When considering a motion to dismiss, the Court must view the indictment “as a whole[,]
and the allegations must be accepted as true.” United States v. Weeks, 636 F. Supp. 3d 117, 120
(D.D.C. 2022) (internal quotation marks omitted) Count One, which charges a conspiracy to defraud the United States, in violation of 18
U.S.C. § 371, alleges that the defendant, then a candidate seeking re-election to the presidency,
conspired with, among others, several individuals outside the Executive Branch to “overturn the
legitimate results of the 2020 presidential election by using knowingly false claims of election
fraud to obstruct the federal government function by which those results are collected, counted,
and certified.” ECF No. 1 at ¶¶ 1, 7, 8. The indictment further alleges that the defendant aimed at
accomplishing the conspiracy’s objectives in five ways: using deceit toward state officials to
subvert the legitimate election results in those states, id. at ¶¶ 13-52; using deceit to organize
fraudulent slates of electors in seven targeted states, and cause them to send false certificates to
Congress, id. at ¶¶ 53-69; leveraging the Department of Justice to use deceit to get state officials
to replace the legitimate electoral slate with electors who would cast their votes for the defendant,
id. at ¶¶ 70-85; attempting to enlist the Vice President to fraudulently alter the election results
during the certification proceeding on January 6, 2021, and directing supporters to the Capitol to
obstruct the proceeding, id. at ¶¶ 86-105; and exploiting the violence and chaos that transpired at
the United States Capitol on January 6, 2021, id. at ¶¶ 106-124. Counts Two and Three, which
incorporate allegations from Count One, charge conspiracy and substantive violations of 18 U.S.C.
§ 1512(c)(2) for corruptly obstructing the certification of the presidential election results on
January 6, 2021. Id. at ¶¶ 125-28. Count Four, which likewise incorporates the allegations from
Count One, alleges that the defendant conspired to violate one or more person’s constitutional right
to vote and have one’s vote counted.
