Posted originally on the CTH on October 5, 2023 | Sundance

UPDATE:  Outline edited as original review cited Mar-a-Lago case, this is DC case.

As expected, the first legal motion to dismiss the DC January 6 case is based on the first constitutional application, presidential immunity. [Full Filing pdf HERE]

President Trump’s attorneys John Lauro and Todd Blanche say within their first filing that special prosecutor Jack Smith’s case against President Trump is an attempt to criminalize actions that were well within his White House duties, such as enforcing federal election laws.

“The Constitution, the Supreme Court, and hundreds of years of history and tradition all make clear, the President’s motivations are not for the prosecution or this Court to decide. Rather, where, as here, the President’s actions are within the ambit of his office, he is absolutely immune from prosecution.”

[Source pdf]

It is a strong and compelling argument, citing numerous prior cases and rulings on the plenary power of the executive and the constitutional establishment of the President as the absolute power within the executive branch.   The argument hits one of three core tenets that Jack Smith has used to establish his case.

Even left-leaning Politico seems to accept the foundation of the DC Smith case weakens when contrast against the executive power of the president.

[The] prosecutors’ case is really about distinct powers that the president has: communicating with the public, organizing his administration, talking to Congress, enforcing election laws and ensuring the Constitution is faithfully executed. Whether Trump genuinely believed that the election was stolen — which his attorneys say he did — is irrelevant in assessing his immunity from prosecution, they argue.

“This conduct is manifestly part of the President’s responsibilities in our constitutional tradition, and the question whether the President has a formal role in the election certification process makes no difference,” the attorneys wrote.

[…] Trump’s attorneys say there’s an even more fundamental problem with the charges against him: He was acquitted by the Senate in an impeachment trial for similar conduct. That acquittal, they say, renders Trump “absolutely immune” from prosecution for related acts.

“The Impeachment Clauses provide that the President may be charged by indictment only in cases where the President has been impeached and convicted by trial in the Senate,” the attorneys wrote. “Here, President Trump was acquitted by the Senate for the same course of conduct.”

The Senate acquitted Trump despite a 57-43 majority favoring his conviction because of a two-thirds requirement in the Constitution. At the time, Trump was charged with one count — inciting insurrection — related to his speech to a rally crowd that later became the mob that stormed the Capitol on Jan. 6, 2021. The impeachment trial came just a month after the attack — and shortly after Trump had left office. (link)