ATLANTA — Former president Donald Trump urged an Atlanta-area judge to dismiss charges he illegally conspired to overturn his 2020 election loss in Georgia, claiming his alleged actions were at the “heart” of his sworn responsibilities as president and that he is immune from criminal prosecution.
A federal appeals court in Washington on Tuesday is scheduled to hear arguments over Trump’s immunity claims in that case, with Trump expected to attend the hearing in-person. While the state and federal cases against Trump are separate, the decision on Trump’s immunity in the federal case could affect his case in Georgia, where the former president and 18 allies were indicted in August as part of a sweeping racketeering indictment tied to efforts to overturn Trump’s 2020 election loss in the state.
“From 1789 to 2023, no president ever faced criminal prosecution for acts committed while in office. That unbroken historic tradition of presidential immunity is rooted in the separation of powers and the text of the Constitution,” Sadow wrote in Monday’s filing. “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.”
Trump is facing 13 charges in Georgia, including violating the state’s racketeering act, soliciting a public officer to violate their oath, conspiring to impersonate a public officer, conspiring to commit forgery in the first degree and conspiring to file false documents. The former president has pleaded not guilty.
Among other things, prosecutors cite Trump’s calls to state officials, including Georgia Secretary of State Brad Raffensperger (R), as he sought to reverse Joe Biden’s win in the state and public statements he made, including on social media, falsely claiming election fraud in the weeks after the 2020 election.
In Monday’s filing, Sadow repeatedly argued that the alleged acts in the Georgia indictment were within the “outer perimeter” of Trump’s official duties and among his “core” responsibilities as president. But Fulton County District Attorney Fani T. Willis (D), whose office is leading the case, has alleged Trump was acting in his own self-interest, not within his presidential scope, as he sought to overturn his 2020 election loss.
In separate motions, Sadow also sought to have the Georgia case thrown out on grounds that the charges violated double jeopardy protections — pointing to Trump’s acquittal on impeachment charges by the U.S. Senate in February 2021.
“The indictment must be dismissed because President Trump was impeached, tried by the Senate and acquitted on articles of impeachment that arise from the same alleged facts and course of conduct as the criminal indictment in this case,” Sadow wrote, echoing an argument also made by Trump’s defense team in the federal election case.
Trump also argued the charges violated his due process rights and First Amendment protections.
“President Trump did not have fair warning that his alleged conduct, pure political speech and expressive conduct challenging an election, could be criminalized, particularly since such actions have never before been prosecuted and no President has ever been criminally charged in the 234-year history of the United States of America,” Sadow wrote.
A spokesman for Willis declined to comment on the filings, but prosecutors are likely to vigorously challenge Trump’s claims before Fulton County Superior Court Judge Scott McAfee, who is presiding over the case.
Four of those charged in the Fulton indictment have reached plea deals in the case. Trump’s filings came as he and other remaining defendants face a deadline to file pretrial motions in the case, even as McAfee has yet to set an official trial date in the case.
Willis has sought an August trial date — which Trump opposes, with his attorney arguing it would be “election interference.” McAfee has strongly signaled he is likely to try the 15 remaining defendants in the case in separate groups, with a trial date guided by what happens with the legal calendar in Trump’s federal cases.