Trump Opening Brief With DC Appeals Court Arguing Immunity Claims

USCA Case #23-3228 Document #2033200 Filed: 12/23/2023 Page 1 of 71
ORAL ARGUMENT SET FOR JANUARY 9, 2024
No. 23-3228
IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT
UNITED STATES OF AMERICA,

Appellee,
v.
DONALD J. TRUMP,
Defendant-Appellant.
______________________
On Appeal from the United States District Court

for the District of Columbia
OPENING BRIEF OF DEFENDANT-APPELLANT

PRESIDENT DONALD J. TRUMP
LAURO & SINGER JAMES OTIS LAW GROUP, LLC

John F. Lauro D. John Sauer
Gregory M. Singer William O. Scharf
400 N. Tampa St., 15th Floor Michael E. Talent
Tampa, FL 33602 13321 N. Outer Forty Road, Suite 300
(813) 222-8990 St. Louis, Missouri 63017
[email protected] (314) 562-0031
[email protected]
BLANCHE LAW
Todd Blanche Attorneys for President Donald J. Trump
Emil Bove
99 Wall St., Suite 4460
New York, NY 10005
(212) 716-1250
[email protected]
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
A. PARTIES AND AMICI CURIAE
The parties in the district court include the United States of America and
President Donald J. Trump. The district court denied leave to file to proposed amici
curiae. The parties before this Court include the United States of America and
President Donald J. Trump.
Amici Curiae before this Court include, for Appellee:
Donald B. Ayer; John B. Bellinger, III; Barbara Comstock; John C. Danforth;
Mickey Edwards; Charles Fried; Stuart M. Gerson, Esquire; John Giraudo; Peter D.
Keisler; Edward J. Larson; J. Michael Luttig; Carter G. Phillips; Alan Charles Raul,
Attorney; Paul Rosenzweig; Nicholas Rostow; Robert B. Shanks; Christopher
Shays; Michael Shepherd; Larry Thompson; Stanley Twardy; Christine Todd
Whitman; Wendell Willkie, II; Keith E. Whittington; Richard Bernstein
Disclosure Statement: No Disclosure Statement under Federal Rule of
Appellate Procedure 26.1 or under Circuit Rule 26.1 is necessary, as Defendant is
not a corporation or similar entity.
B. RULINGS UNDER REVIEW
The parties are before this Court on appeal from the December 1, 2023,
Memorandum Opinion and Order of the district court issued by Hon. Tanya S.
i
Chutkan, D.Ct. Doc. Nos. 171, 172, in United States v. Trump, No. 1:23-cr-00257
(TSC), -- F. Supp. 3d --, 2023 WL 8359833 (D.D.C. Dec. 1, 2023), J.A.599, 647.
C. RELATED CASES
The following cases are related cases within the meaning of D.C. Circuit Rule
28(a)(1)(C):
• Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031 (consol.), -- F.4th--,
2023 WL 8291481 (D.C. Cir. Dec. 1, 2023) (appeal involving President
Trump and the United States as amicus curiae addressing Presidential
immunity for certain related alleged conduct in the civil context)
• United States v. Trump, No. 23-3190, -- F.4th --, 2023 WL 8517991 (D.C. Cir.
Dec. 8, 2023) (interlocutory appeal in this case challenging the district court’s
entry of an unconstitutional gag order on President Trump’s extrajudicial
statements)
/s/ D. John Sauer
ii
TABLE OF CONTENTS
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES.................i
TABLE OF CONTENTS ......................................................................................... iii
TABLE OF AUTHORITIES ...................................................................................... v
GLOSSARY ........................................................................................................... xiii
INTRODUCTION ..................................................................................................... 1
STATEMENT OF JURISDICTION .......................................................................... 2
STATEMENT OF THE ISSUES ............................................................................... 2
STATEMENT OF THE CASE................................................................................... 3
I. Allegations in the Indictment. .......................................................................... 3
II. Trial Court Proceedings.................................................................................... 4
SUMMARY OF ARGUMENT .................................................................................. 5
STANDARD OF REVIEW ....................................................................................... 8
ARGUMENT ............................................................................................................. 9
I. The Prosecution of President Trump Is Barred by Presidential Immunity....... 9
A. Presidential Immunity Includes Immunity from Criminal Prosecution for

Official Acts. ............................................................................................... 9
1. The separation of powers requires criminal immunity. ......................... 9
2. The Impeachment Judgment Clause presupposes immunity............... 12
3. Early constitutional authorities confirm immunity.............................. 14
4. The common law supports criminal immunity. ................................... 16

iii
5. Criminal immunity draws support from 234 years of history. ............ 17
6. Analogous immunity doctrines support criminal immunity. ............... 18
7. Policy rooted in the separation of powers supports immunity. ........... 21
B. The District Court’s Contrary Reasoning Is Not Convincing. ................. 25
C. The Conduct Alleged in the Indictment Falls Within the Scope of

President Trump’s Official Responsibilities. ............................................ 41
II. The Prosecution Is Barred by the Impeachment Judgment Clause and

Principles of Double Jeopardy. ...................................................................... 46
CONCLUSION ........................................................................................................ 55
CERTIFICATE OF SERVICE ................................................................................. 56
CERTIFICATE OF COMPLIANCE ....................................................................... 57
iv
TABLE OF AUTHORITIES
Cases
Abney v. United States,

431 U.S. 651 (1977) .............................................................................................. 2
Anderson v. Celebrezze,
460 U.S. 780 (1983) ......................................................................................37, 44
Ball v. United States,

163 U.S. 662 (1896) ............................................................................................ 48
Barr v. Matteo,
360 U.S. 564 (1959) ............................................................................9, 22, 23, 42
Blassingame v. Trump,
87 F.4th 1 (D.C. Cir. 2023) ....................................................................... 8, 41-43
Bradley v. Fisher,
80 U.S. 335 (1871) .............................................................................................. 42
Burroughs v. United States,

290 U.S. 534 (1934) ......................................................................................44, 46
Butz v. Economou,
438 U.S. 478 (1978) ................................................................................ 23, 39-40
CAIR v. Ballenger,
444 F.3d 659 (D.C. Cir. 2006) .............................................................................. 8
Cheney v. U.S. Dist. Ct. for D.C.,

542 U.S. 367 (2004) ............................................................................................ 23
Chi. & S. Air Lines v. Waterman S.S. Corp.,

333 U.S. 103 (1948) ............................................................................................ 12
Clinton v. Jones,
520 U.S. 681 (1997) ............................................................. 13, 26, 28, 31, 51, 54
v
Coffin v. Coffin,
4 Mass. 1, 27 (Mass. 1808) ................................................................................. 19
Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) .............................................................................................. 2
Coinbase, Inc. v. Bielski,

599 U.S. 736 (2023) ............................................................................................ 17
Cunningham v. Neagle,
135 U.S. 1 (1890) ..........................................................................................44, 46
Dennis v. Sparks,
449 U.S. 24 (1980) .............................................................................................. 21
Ex parte Virginia,
100 U.S. 339 (1879) ............................................................................................ 20
Ferri v. Ackerman,
444 U.S. 193 (1979) ............................................................................................ 24
Franklin v. Massachusetts,
505 U.S. 788 (1992) .......................................................................... 11, 12, 30, 38
Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,

561 U.S. 477 (2010) ......................................................................................18, 25
Freeman v. Quicken Loans, Inc.,

566 U.S. 624 (2012) ............................................................................................ 48
Gravel v. United States,

408 U.S. 606 (1972) ................................................................................ 19, 38-39
Gregoire v. Biddle,
177 F.2d 579 (2d Cir. 1949) ..........................................................................22, 42
Guzman–Rivera v. Rivera–Cruz,
55 F.3d 26 (1st Cir. 1995) ................................................................................... 46
vi
Harlow v. Fitzgerald,
457 U.S. 800 (1982) ............................................................................................ 35
Imbler v. Pachtman,
424 U.S. 409 (1976) ......................................................................................22, 23
In re Sealed Case,
121 F.3d 729 (D.C. Cir. 1997) ............................................................................ 44
INS v. Chadha,
462 U.S. 919 (1983) ............................................................................................ 32
Knight First Amend. Inst. at Columbia Univ. v. Trump,

928 F.3d 226 (2d Cir. 2019) ................................................................................ 43
Marbury v. Madison,
5 U.S. (1 Cranch) 137 (1803) ....................................................... 6, 10-11, 15, 51
Martin v. Mott,
25 U.S. (12 Wheat.) 19 (1827)...................................................................... 11, 35
McDonnell v. United States,

579 U.S. 550 (2016) ............................................................................................ 33
Mercy Hosp., Inc. v. Azar,

891 F.3d 1062 (D.C. Cir. 2018) .......................................................................... 47
Morrison v. Olson,
487 U.S. 654 (1988) ...................................................................................... 32-33
Mississippi v. Johnson,
71 U.S. 475 (1866) ........................................................................................ 11, 12
Myers v. United States,

272 U.S. 52 (1926) .............................................................................................. 43
NFIB v. OSHA,
595 U.S. 109 (2022) ......................................................................................18, 25
vii
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .. 2, 7-10, 12, 14, 16-17, 21-26, 28, 31, 35-36, 40-41, 44, 54
O’Shea v. Littleton,
414 U.S. 488 (1974) ............................................................................................ 38
Perrin v. United States,

444 U.S. 37 (1979) .............................................................................................. 21
Pierson v. Ray,
386 U.S. 547 (1967) ......................................................................................24, 42
Pleasant Grove City v. Summum,

555 U.S. 460 (2009) ............................................................................................ 42
Ponzi v. Fessenden,
258 U.S. 254 (1922) ............................................................................................ 43
Prince v. Hicks,
198 F.3d 607 (6th Cir. 1999) ............................................................................... 46
Printz v. United States,

521 U.S. 898 (1997) ......................................................................................18, 25
Seila Law, LLC v. CFPB,

140 S. Ct. 2183 (2020) ..............................................................................7, 18, 25
Spalding v. Vilas,
161 U.S. 483 (1896) ............................................................................7, 19, 23, 42
Stump v. Sparkman,
435 U.S. 349 (1978) ............................................................................................ 41
Tenney v. Brandhove,
341 U.S. 367 (1951) ................................................................................ 11, 19, 35
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ........................................................................................ 42
viii
Trump v. Mazars USA, LLP,

140 S. Ct. 2019 (2020) ........................................................................................ 42
Trump v. Vance,
140 S. Ct. 2412 (2020) ................................................................13, 15, 22, 23, 36
United States v. Chaplin,

54 F. Supp. 926 (S.D. Cal. 1944) ........................................................................ 20
United States v. Curtiss-Wright Export Corp.,

299 U.S. 304 (1936) ............................................................................................ 37
United States v. Johnson,

383 U.S. 169 (1966) ..............................................................................6, 7, 16, 19
United States v. Lee,

106 U.S. 196 (1882) ............................................................................................ 39
United States v. Nixon,

418 U.S. 683 (1974) ............................................................................................ 32
Wuterich v. Murtha,
562 F.3d 375 (D.C. Cir. 2009) .............................................................................. 2
Yates v. Lansing,
5 Johns. 282 (N.Y. 1810) .................................................................................... 19
Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ...................................................................................... 37-38
U.S. Constitution
U.S. CONST. art. I, § 3, cl. 7 .............................................. 3, 5-6, 8, 12, 27, 31, 46-48
U.S. CONST. art. I, § 7, cl. 2 ..................................................................................... 45
U.S. CONST. art. I, § 7, cl. 3 ..................................................................................... 45
U.S. CONST. art. II, § 1 .......................................................................................10, 38
U.S. CONST. art. II, § 1, cl 2 ..................................................................................... 46
U.S. CONST. art. II, § 2, cl. 2 .................................................................................... 43
U.S. CONST. art. II, § 3 .......................................................................................43, 45
ix
Statutes and Regulations
18 U.S.C. § 241 ........................................................................................................ 43

18 U.S.C. § 242 ........................................................................................................ 43
18 U.S.C. § 611 ........................................................................................................ 43
18 U.S.C. § 911 ........................................................................................................ 43
18 U.S.C. § 1015(f) .................................................................................................. 43
18 U.S.C. § 3231 ........................................................................................................ 2
28 U.S.C. § 1291 ........................................................................................................ 2
52 U.S.C. § 10307(c) ............................................................................................... 43
52 U.S.C. § 10307(e) ............................................................................................... 43
52 U.S.C. § 20511(1) ............................................................................................... 43
52 U.S.C. § 20511(2)(A) .......................................................................................... 43
52 U.S.C. § 20511(2)(B) .......................................................................................... 43
52 U.S.C. § 30120 .................................................................................................... 43
52 U.S.C. § 30124 .................................................................................................... 43
Exec. Order 14019, 86 Fed. Reg. 13623-27 ............................................................ 44
H. RES. 24 (117th Cong. 1st Sess.), https://www.congress.gov/bill/117th-
congress/house-resolution/24/text............................................................................ 46
H.R. Rep. No. 81-3138 ............................................................................................ 45
Other Authorities
1 Annals of Congress 481 (1789)............................................................................. 44
2 J. ELLIOT, DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863) ........14, 51
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, §

1563 (1833), https://lonang.com/library/reference/story-commentaries-us-
constitution/sto-337/..................................................................................... 11, 48, 52
6 W. HOLDSWORTH, A HISTORY OF ENGLISH LAW 235-36 (2d ed. 1937) ................. 20
28 PAPERS OF ULYSSES S. GRANT 19-20, 75-78, 80–81 (ed. John Y. Simon 2005), at
https://scholarsjunction.msstate.edu/usg-volumes/27/ ............................................ 45
A Sitting President’s Amenability to Indictment and Criminal Prosecution, 24 U.S.

Op. Off. Legal Counsel 222, 2000 WL 33711291 (2000) .......... 27-31, 34-35, 37, 49
x
Amenability of the President, Vice President and other Civil Officers to Federal
Criminal Prosecution while in Office (1973)........................................................... 27
ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF

LEGAL TEXTS 107 (2012) ...................................................................................13, 46
Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J.
2133 (1998) ..................................................................................................14, 35, 50
Brief for United States as Amicus Curiae in Blassingame v. Trump, Nos. 22-5069,
22-7030, 22-7031 (D.C. Cir. filed March 2, 2023) ............................................ 44-45
Clinton Rossiter, The American Presidency 108 (2d rev. ed. 1960) ........................ 45
Gary L. Gregg II, George W. Bush: Foreign Affairs, UVA Miller Center,
https://millercenter.org/president/-gwbush/foreign-affairs ...................................... 17
J. Randolph Block, Stump v. Sparkman and the History of Judicial Immunity, 1980
DUKE L.J. 879, 884................................................................................................... 20
JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY 4 (2017) .................................... 42
Jessie Kratz, The 1824 Presidential Election and the “Corrupt Bargain”, National
Archives (Oct. 22, 2020), at https://prologue.blogs.archives.gov/2020/10/22/the-
1824-presidential-election-and-the-corrupt-bargain/ ............................................... 17
Letter from James Madison to Edmund Pendleton, 28 October 1787,

https://founders.archives.gov/documents/Madison/01-10-02-0156 ........................ 50
Letter to James Madison from Edmund Pendleton, 8 October 1787,

https://founders.archives.gov/documents/Madison/01-17-02-0352 ........................ 50
Lobbying by Executive Branch Personnel, U.S. Op. O.L.C. Supp. 240, 243-45
(1961) ....................................................................................................................... 45
Office & Duties of Attorney General, 6 U.S. Op. Atty. Gen. 326, 335 (1854) ........ 43
Prosecution for Contempt of Congress of an Executive Branch Official Who Has

Asserted a Claim of Executive Privilege, 8 U.S. Op. O.L.C. 101, 113 (1984) ........ 43
xi
R. Jackson, The Federal Prosecutor, Address Delivered at the Second Annual

Conference of United States Attorneys (April 1, 1940) ........................................... 33
Spencer Ackerman, US Cited Controversial Law in Decision to Kill American

Citizen by Drone, The Guardian (June 23, 2014),
https://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-
american-citizen-awlaki ........................................................................................... 17
THE FEDERALIST NO. 47 ............................................................................... 33, 53-54
THE FEDERALIST NO. 65 ............................................................................... 50, 52-53
THE FEDERALIST No. 69 .........................................................................13, 15, 26, 50
THE FEDERALIST No. 77 ...............................................................................13, 15, 50
The Legal Aftermath: Citizen Nixon and the Law, Time (Aug. 19, 1974), at
https://content.time.com/time/subscriber/article/0,33009,942980-2,00.html....28, 41
U.S. Dep’t of Justice, Federal Prosecution of Election Offenses (8th ed. 2017),
https://www.justice.gov/criminal/file/1029066/download ...................................... 43
Whether a Former President May Be Indicted and Tried for the Same Offenses for
Which He Was Impeached by the House and Acquitted by the Senate, 24 Op.
O.L.C. 110, 114 (2000) ...................................................................................... 47-54
xii
GLOSSARY
criminal immunity…………………….absolute presidential immunity from

criminal prosecution for official acts
Double Jeopardy Memo………………Whether a Former President May Be

Indicted and Tried for the Same Offenses for
Which He Was Impeached by the House and
Acquitted by the Senate, 24 Op. O.L.C. 110,
114 (2000)
J.A.__....................................................Joint Appendix (page number[s])
OLC Memo……………………………A Sitting President’s Amenability to

Indictment and Criminal Prosecution, 24
U.S. Op. O.L.C. 222, 2000 WL 33711291
(2000)
President Trump………………………Appellant President Donald J. Trump
the government………………………..Appellee United States of America
xiii
INTRODUCTION
During the 234 years from 1789 to 2023, no current or former President had
ever been criminally prosecuted for official acts. That unbroken tradition died this
year, and the historical fallout is tremendous. The indictment of President Trump
threatens to launch cycles of recrimination and politically motivated prosecution that
will plague our Nation for many decades to come and stands likely to shatter the
very bedrock of our Republic—the confidence of American citizens in an
independent judicial system.
Under our system of separated powers, the Judicial Branch cannot sit in
judgment over a President’s official acts. That doctrine is not controversial. It was
treated as self-evident and foundational from the dawn of the Republic, and it flows
directly from the exclusive vesting clause of Article II. In 1803, Chief Justice
Marshall endorsed it, writing in Marbury v. Madison that a President’s official acts
“can never be examinable by the courts.”
The structure of our government, the text of the Constitution and its early
commentators, common-law immunity doctrines, our political history, the Supreme
Court’s analogous immunity doctrines, and the policy considerations rooted in the
separation of powers all dictate that no President, current or former, may be
criminally prosecuted for his official acts unless he is first impeached and convicted
by the Senate. Nor may a President face criminal prosecution based on conduct for
1
which he was acquitted by the U.S. Senate. The indictment against President Trump
is unlawful and unconstitutional. It must be dismissed.
STATEMENT OF JURISDICTION
The district court exercised subject-matter jurisdiction over the underlying
federal criminal case under 18 U.S.C. § 3231. The district court denied President
Trump’s claims of Presidential immunity and double jeopardy by opinion and order
dated December 1, 2023. J.A.599, 647. President Trump filed a timely notice of
appeal on December 7, 2023. J.A.648.
The district court’s decision constitutes a “final decision” under 28 U.S.C.
§ 1291 and the collateral-order doctrine. See Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 546-47 (1949); Nixon v. Fitzgerald, 457 U.S. 731, 743 (1982). The
denial of presidential immunity “is an immediately appealable collateral order.”
Wuterich v. Murtha, 562 F.3d 375, 381–82 (D.C. Cir. 2009) (citing cases). So is the
denial of President Trump’s double-jeopardy claim. Abney v. United States, 431 U.S.
651, 659 (1977).
STATEMENT OF THE ISSUES
I. Whether the President has immunity from criminal prosecution for official
acts, i.e., those that fall within the “outer perimeter” of his official responsibilities;
2
II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and
principles of Double Jeopardy prevent the prosecution of a President who has been
impeached and acquitted by the Senate for the same or closely related conduct.
STATEMENT OF THE CASE
I. Allegations in the Indictment.
On August 1, 2023, President Trump was indicted on four counts based on
allegations regarding his efforts to dispute the outcome of the widely questioned
2020 presidential election. J.A.24. The indictment charges President Trump with
acts of political speech and advocacy in disputing the election’s outcome after the
campaign ended, performed while President Trump was still in office. Id. The
indictment alleges five types of conduct, all of which constitute quintessential
Presidential acts:
First, it alleges that President Trump made a series of tweets and other public
statements about the outcome of the 2020 federal election, contending that the
election was tainted by fraud and irregularities. J.A.24, 29-32, 34, 39-44, 59-62
(public statements); J.A.36-37, 43-44, 55-56, 58-59, 63 (tweets).
Second, the indictment alleges that President Trump communicated with the
Acting Attorney General and officials at the U.S. Department of Justice about
investigating election crimes and possibly appointing a new Acting Attorney
General. J.A.29, 37-38, 40, 43-44, 50-54.
3
Third, the indictment alleges that President Trump communicated with state
officials about the administration of the federal election and urged them to exercise
their official responsibilities in accordance with extensive information that the
election was tainted by fraud and irregularities. J.A.28, 33-43.
Fourth, the indictment alleges that President Trump communicated with the
Vice President, in his legislative capacity as President of the Senate, and attempted
to communicate with other members of Congress in order to urge them to exercise
their official duties with respect to the certification of the federal election according
to President Trump’s view of the national interest. J.A.29, 55-60, 63-65.
Fifth, the indictment alleges that other individuals organized slates of alternate
electors from seven States to provide a justification for the Vice President to exercise
his official duties in the manner urged by President Trump. J.A.44-50.
II. Trial Court Proceedings.
On October 5, 2023, President Trump filed a motion to dismiss the indictment
on grounds of Presidential immunity. J.A.331. He argued that presidential immunity
extends to immunity from criminal prosecution for a President’s official acts, i.e.,
those performed within the “outer perimeter” of the President’s official
responsibility. J.A.344-57. He argued that all five classes of conduct alleged in the
indictment fall within the outer perimeter of the President’s official responsibility.
J.A.357-81.
4
On October 23, 2023, President Trump filed a motion to dismiss on
constitutional grounds. J.A.437. As relevant here, President Trump argued that the
Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl.7, and principles of
Double Jeopardy foreclose the prosecution because President Trump was impeached
and acquitted for the same and closely related conduct. J.A.454-60.
On December 1, 2023, the district court issued its Memorandum Opinion and
Order. J.A.599, 647. First, the district court wrongfully held that a former President
has no immunity from prosecution for official acts performed while in office.
J.A.604-29. The court did not address whether any of the conduct alleged in the
indictment falls within the scope of the President’s official duties. J.A.628. The
district court also incorrectly held that “neither traditional double jeopardy principles
nor the Impeachment Judgment Clause” prevent the prosecution of a President who
has been impeached and acquitted by the Senate. J.A.636-42.
SUMMARY OF ARGUMENT
I. President Trump has absolute immunity from prosecution for his official acts
as President. The indictment alleges only official acts, so it must be dismissed.
A. Seven considerations mandate the recognition of presidential immunity
from prosecution for official acts. First, criminal immunity has deep roots in the
separation of powers. Under Article II, § 1, the President is vested with the
Executive Power. The Judicial Branch may not sit in judgment, criminal or
5
otherwise, over his exercise of that power. As Chief Justice Marshall wrote in
Marbury v. Madison, the President’s official acts “can never be examinable by the
courts.” 5 U.S. (1 Cranch) 137, 165-66 (1803).
Second, the text of the Constitution, through the Impeachment Judgment
Clause, presupposes criminal immunity. That Clause dictates that a President may
be criminally charged only if he is the “Party convicted” in an impeachment trial.
U.S. CONST. art. I, § 3, cl. 7. Alexander Hamilton reinforced this understanding by
writing in The Federalist that the President may face criminal prosecution only
“afterwards” or “subsequent” to impeachment and Senate conviction. President
Trump was acquitted, not convicted, by the Senate after an impeachment, so he
retains immunity for his official acts.
Third, early commentators on the Constitution—including Chief Justice
Marshall, George Washington’s Attorney General Charles Lee, Alexander Hamilton,
Justice Joseph Story, and others—confirm that a President’s official acts are not
examinable by the Judicial Branch.
Fourth, at common law, immunity from criminal prosecution was far more
central to the concept of immunity than immunity from civil liability. The prospect
of senior officials facing “criminal charges” before a “possibly hostile judiciary” was
the “chief fear” that official immunity was designed to prevent. United States v.
Johnson, 383 U.S. 169, 180-82 (1966).
6
Fifth, the 234-year tradition of not prosecuting Presidents for official acts—
despite ample motive and opportunity to do so—provides powerful evidence that the
power to do so does not exist. “Perhaps the most telling indication of a severe
constitutional problem” with this “wholly unprecedented” prosecution “is a lack of
historical precedent to support it.” Seila Law, LLC v. CFPB, 140 S. Ct. 2183, 2201
(2020) (cleaned up).
Sixth, analogous immunity doctrines for legislators and judges, which are also
rooted in the separation of powers, support criminal immunity for a President’s
official acts. Legislative immunity “prevent[s]” legislative acts “from being made
the basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at
180. Excluding cases of bribery, which were long prosecutable at common law,
judicial immunity shields a judge from “indictment for any act done … by him,
sitting as judge.” Spalding v. Vilas, 161 U.S. 483, 494 (1896). Presidents’ official
acts are equally, if not more so, immune.
Seventh, policy considerations rooted in the separation of powers support
immunity. The President handles “especially sensitive duties,” Fitzgerald, 457 U.S.
at 746. The Presidency requires “bold and unhesitating action.” Id. at 745. The
threat of future prosecution risks “crippl[ing] the proper and effective administration
of public affairs.” Id. at 745 (quoting Spalding, 161 U.S. at 498). The President is
most likely to be “harassed by vexatious actions.” Spalding, 161 U.S. at 495. The
7
threat of indictment, conviction, and imprisonment by a politically motivated
successor—or by hundreds of local prosecutors, many in enclaves of political
hostility to the President—before a possibly hostile judiciary poses a far greater
deterrent to bold, fearless Executive leadership than civil liability.
B. Given the existence of criminal immunity, the scope of immunity should
extend to the “‘outer perimeter’ of [the President’s] official responsibility.”
Fitzgerald, 457 U.S. at 756. Applying these principles, all five types of conduct
alleged in the indictment fall within the outer perimeter of President Trump’s official
duties.
II. In addition, the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7,
mandates reversal because it incorporates a Double Jeopardy principle: A President
who is acquitted by the Senate cannot be prosecuted for the acquitted conduct. The
Clause’s plain meaning, its historical context, and the decisive weight of authority
from key commentators all confirm that a single unelected prosecutor lacks authority
to second-guess the judgment of the U.S. Congress.
STANDARD OF REVIEW
Both issues in this appeal present pure questions of law that are “subject to de
novo review.” CAIR v. Ballenger, 444 F.3d 659, 664 (D.C. Cir. 2006); see also
Blassingame v. Trump, 87 F.4th 1, 12 (D.C. Cir. 2023).
8
ARGUMENT
I. The Prosecution of President Trump Is Barred by Presidential Immunity.
A. Presidential Immunity Includes Immunity from Criminal

Prosecution for Official Acts.
“In view of the special nature of the President’s constitutional office and
functions,” a current or former President has “absolute Presidential immunity from
[civil] damages liability for acts within the ‘outer perimeter’ of his official
responsibility.” Fitzgerald, 457 U.S. at 756 (quoting Barr v. Matteo, 360 U.S. 564,
575 (1959)). In addressing whether this extends to immunity from prosecution, this
Court should examine the Constitution’s text, structure, and original meaning; the
common law; historical practice; the Supreme Court’s precedents and immunity
doctrines; and considerations of public policy. See id. at 747. All these authorities
point in the same direction—the President has absolute immunity from criminal
prosecution “for acts within the ‘outer perimeter’ of his official responsibility.” Id.
at 756.
1. The separation of powers requires criminal immunity.
First, as emphasized in Fitzgerald, the doctrine of presidential immunity is
“rooted in the separation of powers under the Constitution.” 457 U.S. at 753. “The
President occupies a unique position in the constitutional scheme,” and the
President’s “absolute immunity … predicated on his official acts” constitutes “a
functionally mandated incident of the President’s unique office, rooted in the

9
constitutional tradition of the separation of powers and supported by our history.”
Id. at 732, 749.
Under the doctrine of separated powers, neither a federal nor a state
prosecutor, nor a state or federal court, may sit in judgment over a President’s official
acts, which are vested in the Presidency alone. U.S. CONST. art. II, § 1. “Article II,
§ 1, of the Constitution provides that ‘[t]he executive Power shall be vested in a
President of the United States.’ This grant of authority establishes the President as
the chief constitutional officer of the Executive Branch, entrusted with supervisory
and policy responsibilities of utmost discretion and sensitivity.” Fitzgerald, 457
U.S. at 749-50 (alterations omitted). “The President’s unique status under the
Constitution distinguishes him from other executive officials.” Id. at 750.
The immunity of the President’s official acts from judicial second-guessing
has been treated as self-evident and foundational from the dawn of the Republic.
Chief Justice Marshall emphasized in Marbury v. Madison that “[b]y the constitution
of the United States, the President is invested with certain important political powers,
in the exercise of which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.” 5 U.S. (1 Cranch)
at 165–66. “The acts of such an officer, as an officer, can never be examinable by
the courts.” Id. (emphasis added).
10
Justice Story agreed, citing Marbury for the proposition that the Judicial
Branch lacks authority to sit in judgment over the President’s official acts: “In the
exercise of his political powers he is to use his own discretion, and is accountable
only to his country, and to his own conscience. His decision, in relation to these
powers, is subject to no control; and his discretion, when exercised, is conclusive.”
3 J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES ch. 37, §
1563 (1833), https://lonang.com/library/reference/story-commentaries-us-
constitution/sto-337/. “When the President exercises an authority confided to him
by law,” his official conduct cannot “be passed upon by a jury” or “upon the proofs
submitted to a jury.” Martin v. Mott, 25 U.S. (12 Wheat.) 19, 32-33 (1827) (Story,
J.); cf. Tenney v. Brandhove, 341 U.S. 367, 377 (1951).
Thus, the Judicial Branch cannot “require [the President] to exercise the
‘executive Power’ in a judicially prescribed fashion.” Franklin v. Massachusetts,
505 U.S. 788, 826 (1992) (Scalia, J., concurring in part and concurring in the
judgment). “An attempt on the part of the judicial department of the government to
enforce the performance of such duties by the President might be justly
characterized, in the language of Chief Justice Marshall, as ‘an absurd and excessive
extravagance.’” Mississippi v. Johnson, 71 U.S. 475, 499 (1866) (quoting Marbury,
5 U.S. at 170); Marbury, 5 U.S. at 170 (“Questions … which are, by the constitution
and laws, submitted to the executive, can never be made in this court.”) (emphasis
11
added); see also Chi. & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 112
(1948) (“[W]hatever of this order emanates from the President is not susceptible of
review by the Judicial Department.”). “The Congress is the legislative department
of the government; the President is the executive department. Neither can be
restrained in its action by the judicial department.” Mississippi, 71 U.S. at 500.
“[T]his court has no jurisdiction of a bill to enjoin the President in the performance
of his official duties.” Id. “It is incompatible with his constitutional position that
[the President] be compelled personally to defend his executive actions before a
court.” Franklin, 505 U.S. at 827 (Scalia, J., concurring in part and concurring in
the judgment). The same principles foreclose a criminal prosecution of a President
“based upon his official acts.” Fitzgerald, 457 U.S. at 744.
2. The Impeachment Judgment Clause presupposes immunity.
Second, the text of the Constitution presupposes the President’s criminal
immunity. The Impeachment Judgment Clause provides that “Judgment in Cases of
Impeachment shall not extend further than to removal from Office … but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and
Punishment, according to Law.” U.S. CONST. art. I, § 3, cl. 7 (emphasis added).
Because the Constitution specifies that only “the Party convicted” by trial in the
Senate may be “liable and subject to Indictment, Trial, Judgment and Punishment,”
id., it presupposes that a President who is not convicted may not be subject to
12
criminal prosecution. ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE
INTERPRETATION OF LEGAL TEXTS 107 (2012) (“When a car dealer promises a low
financing rate to ‘purchasers with good credit,’ it is entirely clear that the rate is not
available to purchasers with spotty credit.”).
As Justice Alito recently noted, “[t]he plain implication” of this Clause “is that
criminal prosecution, like removal from the Presidency and disqualification from
other offices, is a consequence that can come about only after the Senate’s judgment,
not during or prior to the Senate trial.” Trump v. Vance, 140 S. Ct. 2412, 2444 (2020)
(Alito, J., dissenting). “This was how Hamilton explained the impeachment
provisions in the Federalist Papers. He wrote that a President may ‘be impeached,
tried, and, upon conviction ... would afterwards be liable to prosecution and
punishment in the ordinary course of law.’” Id. (quoting THE FEDERALIST No. 69
(C. Rossiter ed. 1961)); see also THE FEDERALIST No. 77 (Hamilton) (a President is
“at all times liable to impeachment, trial, [and] dismission from office,” but any other
punishment must come only “by subsequent prosecution in the common course of
law”).
Thus, the Supreme Court has often stated that impeachment, not criminal
prosecution, provides the principal check against a President for malfeasance in his
official duties. “[T]he President … ‘is amenable to [the laws] in his private character
as a citizen, and in his public character by impeachment.’” Clinton v. Jones, 520
13
U.S. 681, 696 (1997) (quoting James Wilson in 2 J. ELLIOT, DEBATES ON THE
FEDERAL CONSTITUTION 480 (2d ed. 1863)) (cleaned up). “With respect to acts taken
in his ‘public character’—that is, official acts—the President may be disciplined
principally by impeachment … . But he is otherwise subject to the laws for his purely
private acts.” Id. “A rule of absolute immunity for the President will not leave the
Nation without sufficient protection against misconduct on the part of the Chief
Executive. There remains the constitutional remedy of impeachment.” Fitzgerald,
457 U.S. at 757; see also Brett M. Kavanaugh, The President and the Independent
Counsel, 86 GEO. L.J. 2133, 2158 (1998) (“The Framers thus appeared to anticipate
that a President who commits serious wrongdoing should be impeached by the
House and removed from office by the Senate—and then prosecuted thereafter.”).
The district court disputed this interpretation of the Clause. J.A.606-11, 638-
42. Those arguments are addressed in Part II, infra.
3. Early constitutional authorities confirm immunity.
Early authorities confirm the doctrine of criminal immunity for official acts.
Alexander Hamilton wrote that the criminal prosecution of a President for official
acts may occur only after impeachment and conviction by the Senate: “The President
of the United States would be liable to be impeached, tried, and, upon conviction of
treason, bribery, or other high crimes or misdemeanors, removed from office; and
would afterwards be liable to prosecution and punishment in the ordinary course of
14
law.” THE FEDERALIST NO. 69; see also THE FEDERALIST NO. 77 (stating that the
President is subject to “subsequent prosecution” after “impeachment, trial, [and]
dismission from office”) (emphases added); Vance, 140 S. Ct. at 2444 (Alito, J.,
dissenting) (“This was how Hamilton explained the impeachment provisions in the
Federalist Papers.”).
Likewise, in Marbury, Attorney General Charles Lee “declare[d] … that the
President is not amenable to any court of judicature for the exercise of his high
functions, but is responsible only in the mode pointed out in the constitution,” i.e.,
impeachment. 5 U.S. at 149. Chief Justice Marshall agreed: “By the constitution of
the United States, the President is invested with certain important political powers,
in the exercise of which he is to use his own discretion, and is accountable only to
his country in his political character, and to his own conscience.” Id. at 165–66.
When the President “act[s] in cases in which the executive possesses a constitutional
or legal discretion, nothing can be more perfectly clear than that [his] acts are only
politically examinable.” Id. at 166. “The acts of such an officer, as an officer, can
never be examinable by the courts.” Id. (emphasis added).
As noted above, Justice Story reinforced this conclusion, both in his
Commentaries and in Martin v. Mott.
15
4. The common law supports criminal immunity.
Fitzgerald emphasized that the Court’s “immunity decisions have been
informed by the common law.” 457 U.S. at 747. At common law, official immunity
to secure the independence of senior officials meant, first and foremost, immunity
from criminal prosecution. Immunity from civil liability was of secondary concern.
The Supreme Court’s Speech and Debate cases make this clear. At common
law, “the privilege” of legislative immunity “was not born primarily of a desire to
avoid private suits …, but rather to prevent intimidation by the executive and
accountability before a possibly hostile judiciary.” Johnson, 383 U.S. at 180–81.
Preventing “the instigation of criminal charges against critical or disfavored
legislators” was the “chief fear” that led to the recognition of legislative immunity.
Id. at 182 (emphasis added). Johnson emphasized that immunity was intended to
protect the legislature from a potentially hostile executive and judiciary, and thus it
transplanted naturally “in the context of the American system of separation of
powers.” Id. So also, protection of the Presidency from political factions and a
potentially hostile judiciary is both reflected in the common law and “rooted in the
constitutional tradition of the separation of powers.” Fitzgerald, 457 U.S. at 749.
For this reason, in regards of immunity doctrines rooted in separation of powers,
civil immunity without criminal immunity is “like a lock without a key, a bat without
16
a ball, a computer without a keyboard—in other words, not especially sensible.”
Coinbase, Inc. v. Bielski, 599 U.S. 736, 743 (2023).
5. Criminal immunity draws support from 234 years of history.
Fitzgerald also consulted the “presuppositions of our political history.” 457
U.S. at 745, 749. From 1789 to 2023, no President was ever prosecuted for his
official acts, despite centuries of motive and opportunity to do so. The 234-year
tradition of not prosecuting Presidents for official acts strongly supports the
existence of immunity. American history abounds with examples of Presidents who
were accused by political opponents of committing crimes through their official acts.
These include, among many others, John Quincy Adams’ alleged “corrupt bargain”
in appointing Henry Clay as Secretary of State;1 President George W. Bush’s
allegedly false claim to Congress that Saddam Hussein possessed stockpiles of
“weapons of mass destruction,” which led to war in which thousands were killed;2
and President Obama’s alleged authorization of a drone strike that targeted and killed
a U.S. citizen abroad (and his teenage son, also a U.S. citizen).3
1
See, e.g., Jessie Kratz, The 1824 Presidential Election and the “Corrupt Bargain”,
National Archives (Oct. 22, 2020),
https://prologue.blogs.archives.gov/2020/10/22/the-1824-presidential-election-and-
the-corrupt-bargain/.
2
See, e.g., Gary L. Gregg II, George W. Bush: Foreign Affairs, UVA Miller Center,
https://millercenter.org/president/-gwbush/foreign-affairs.
3
See, e.g., Spencer Ackerman, US Cited Controversial Law in Decision to Kill
American Citizen by Drone, The Guardian (June 23, 2014),
17
In each such case, the President’s political opponents vehemently accused that
President of criminal behavior in his official acts. In each case, those outraged
political opponents eventually came to power. Yet no President was ever prosecuted,
until this year. The unbroken tradition of not exercising the supposed formidable
power of criminally prosecuting a President for official acts—despite ample motive
and opportunity to do so, over centuries—implies that the power does not exist. See,
e.g., NFIB v. OSHA, 595 U.S. 109, 119 (2022) (per curiam) (“This ‘lack of historical
precedent,’ coupled with the breadth of authority that the [Special Counsel] now
claims, is a ‘telling indication’” that the authority does not exist) (citation omitted);
Seila Law, 140 S. Ct. at 2201 (same); Free Enter. Fund v. Pub. Co. Accounting
Oversight Bd., 561 U.S. 477, 505 (2010) (same). “The constitutional practice ...
tends to negate the existence of the … power asserted here.” Printz v. United States,
521 U.S. 898, 918 (1997).
6. Analogous immunity doctrines support criminal immunity.
Immunity doctrines rooted in the separation of powers also support a finding
of criminal immunity here.
Legislative immunity. Legislative immunity encompasses the
“privilege … to be free from arrest or civil process” for legislative acts, i.e., criminal
https://www.theguardian.com/world/2014/jun/23/us-justification-drone-killing-
american-citizen-awlaki.
18
and civil proceedings alike. Tenney, 341 U.S. at 372. Such immunity enables
officials “to execute the functions of their office without fear of prosecutions, civil
or criminal.” Id. at 373–74 (quoting Coffin v. Coffin, 4 Mass. 1, 27 (Mass. 1808)).
Thus, legislative immunity “prevent[s]” legislative acts “from being made the
basis of a criminal charge against a member of Congress.” Johnson, 383 U.S. at
180. A legislative act “may not be made the basis for a civil or criminal judgment
against a Member [of Congress] because that conduct is within the sphere of
legitimate legislative activity.” Gravel v. United States, 408 U.S. 606, 624 (1972)
(emphasis added). Speech and Debate immunity “protects Members against
prosecutions that directly impinge upon or threaten the legislative process.” Id. at
616.
Judicial immunity. In Spalding v. Vilas, the Supreme Court stated that the
doctrine of judicial immunity extends to both “civil suit” and “indictment”: “‘The
doctrine which holds a judge exempt from a civil suit or indictment for any act done
or omitted to be done by him, sitting as judge, has a deep root in the common law.
It is to be found in the earliest judicial records, and it has been steadily maintained
by an undisputed current of decisions in the English courts, amidst every change of
policy, and through every revolution of their government.’” 161 U.S. at 494 (quoting
Yates v. Lansing, 5 Johns. 282, 291 (N.Y. 1810) (Kent, C. J.)); see also Ex parte
19
Virginia, 100 U.S. 339, 348–49 (1879) (upholding the indictment of a judge on the
ground that the actions charged were not “judicial acts”).
Like legislative immunity, this doctrine is rooted in common law. “[I]t was
held, certainly as early as Edward III.’s reign [1326-1377], that a litigant could not
go behind the record, in order to make a judge civilly or criminally liable for an
abuse of his jurisdiction.” J. Randolph Block, Stump v. Sparkman and the History
of Judicial Immunity, 1980 DUKE L.J. 879, 884 (emphasis added) (quoting 6 W.
HOLDSWORTH, A HISTORY OF ENGLISH LAW 235-36 (2d ed. 1937)). Lord Coke
rejected the “possible subjection” of judges “to criminal prosecution for judicial
acts,” opining that no judge may “be charged … before any other Judge at the suit
of the King.’” Id. at 887 n.39 (quoting 77 Eng. Rep. at 1307) (emphasis added).
Cases where prosecutors have brought criminal charges against judges for
judicial acts are thus exceedingly rare. In United States v. Chaplin, 54 F. Supp. 926
(S.D. Cal. 1944), involving federal charges against a state judge “acting in his
judicial capacity and within his jurisdiction,” id. at 928, the court upheld absolute
immunity from prosecution for judicial acts:
The immunity which has clothed judges for a century and a half in our country
found its genesis in the English common law simultaneously with the
independence of the judiciary. … To sustain the Government’s contention
would be to destroy the independence of the judiciary and mark the beginning
of the end of an independent and fearless judiciary.
Id. at 933-34.
20
Citing Dennis v. Sparks, 449 U.S. 24, 31 (1980), the district court concluded
that there is no judicial immunity from prosecution for judicial acts. J.A.626. This
is incorrect. Dennis involved allegations of bribery, i.e., that “an official act of the
defendant judge was the product of a corrupt conspiracy involving bribery of the
judge.” Dennis, 449 U.S. at 28. But at common law, judicial bribe-taking (or bribe-
extorting) was not treated as a judicial act and was prosecutable. See Perrin v.
United States, 444 U.S. 37, 43 (1979) (“By the time of Blackstone, bribery was
defined as an offense involving a judge or ‘other person concerned in the
administration of justice’ and included the giver as well as the receiver of the bribe.”)
(emphasis added).
7. Policy rooted in the separation of powers supports immunity.
In considering Presidential immunity, the Supreme Court “has weighed
concerns of public policy, especially as illuminated by our history and the structure
of our government.” Fitzgerald, 457 U.S. at 747–48.
Especially sensitive duties. First, the Supreme Court emphasizes the
necessity of robust immunity for officials who have “especially sensitive duties,”
such as prosecutors and judges. Fitzgerald, 457 U.S. at 746. No one exercises more
sensitive duties than the President: “Under the Constitution and laws of the United
States the President has discretionary responsibilities in a broad variety of areas,
many of them highly sensitive.” Id. at 756.
21
Bold and unhesitating action. Second, the Supreme Court reasons that
immunity is most appropriate for officials from whom “bold and unhesitating
action” is required. Id. at 745; see also Imbler v. Pachtman, 424 U.S. 409, 423-24,
427-28 (1976). “[T]o submit all officials, the innocent as well as the guilty, to the
burden of a trial and to the inevitable danger of its outcome would dampen the ardor
of all but the most resolute, or the most irresponsible, in the unflinching discharge
of their duties,” and subject them “to the constant dread of retaliation.” Barr, 360
U.S. at 571–72 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949) (Hand,
J.)). Fitzgerald “conclud[ed] that a President … must ‘deal fearlessly and
impartially with the duties of his office’—not be made ‘unduly cautious in the
discharge of [those] duties’ by the prospect of civil liability for official acts.” Vance,
140 S. Ct. at 2426 (citation omitted). The threat of criminal prosecution poses a
greater risk of deterring bold and unhesitating action.
Crippling and deterring executive action. The Supreme Court emphasizes
the concern that, “[i]n exercising the functions of his office, the head of an Executive
Department, keeping within the limits of his authority, should not be under an
apprehension that the motives that control his official conduct may, at any time,
become the subject of inquiry in a civil suit for damages. It would seriously cripple
the proper and effective administration of public affairs as entrusted to the executive
branch of the government, if he were subjected to any such restraint.” Fitzgerald,
22
457 U.S. at 745 (quoting Spalding, 161 U.S. at 498) (emphasis added); see also Barr,
360 U.S. at 573 (holding that official immunity is “designed to aid in the effective
functioning of government”). “Frequently acting under serious constraints of time
and even information,” a President makes many important decisions, and
“[d]efending these decisions, often years after they were made, could impose unique
and intolerable burdens … .” Imbler, 424 U.S. at 425–26; see also Barr, 360 U.S.
at 571. The President’s “focus should not be blurred by even the subconscious
knowledge” of the risk of future prosecution. Imbler, 424 U.S. at 427. And “[t]here
is no question that a criminal prosecution holds far greater potential for distracting a
President and diminishing his ability to carry out his responsibilities than does the
average civil suit.” Vance, 140 S. Ct. at 2452 (Alito, J., dissenting).
Harassed by vexatious actions. Another key justification for immunity for
officials is to “prevent them being harassed by vexatious actions.” Spalding,
161 U.S. at 495 (quotation omitted). In Imbler, the Supreme Court held that the
common-law immunity of prosecutors rests on the “concern that harassment by
unfounded litigation would cause a deflection of the prosecutor’s energies from his
public duties, and the possibility that he would shade his decisions instead of
exercising the independence of judgment required by his public trust.” 424 U.S. at
423; see also Butz v. Economou, 438 U.S. 478, 512 (1978). The President is most
likely to draw politically motivated ire. See Cheney v. U.S. Dist. Ct. for D.C., 542
23
U.S. 367, 369 (2004) (recognizing “the paramount necessity of protecting the
Executive Branch from vexatious litigation that might distract it from the energetic
performance of its constitutional duties.”).
For each of these policy considerations, the case is even stronger when the
President is faced with the prospect of criminal prosecution, which has a far greater
deterrent effect on bold and fearless action than civil liability or a subpoena to
produce documents. “The President’s unique status under the Constitution
distinguishes him from other executive officials.” Fitzgerald, 457 U.S. at 750.
Thus, “the singular importance of the President’s duties” entails that “diversion of
his energies by concern with” criminal prosecution “would raise unique risks to the
effective functioning of government.” Id. at 751. “[A] President must concern
himself with matters likely to ‘arouse the most intense feelings.’” Id. at 752 (quoting
Pierson v. Ray, 386 U.S. 547, 554 (1967)). “[I]t is in precisely such cases that there
exists the greatest public interest in providing an official ‘the maximum ability to
deal fearlessly and impartially with’ the duties of his office.” Id. (quoting Ferri v.
Ackerman, 444 U.S. 193, 203 (1979)). “This concern is compelling where the
officeholder must make the most sensitive and far-reaching decisions entrusted to
any official under our constitutional system.” Id.
“Nor can the sheer prominence of the President’s office be ignored.” Id. at
752-53. “In view of the visibility of his office and the effect of his actions on
24
countless people, the President would be an easily identifiable target for” criminal
prosecution by a politically motivated successor, as well as hundreds of prosecutors
across the country. Id. at 753. “Cognizance of this personal vulnerability frequently
could distract a President from his public duties, to the detriment of not only the
President and his office but also the Nation that the Presidency was designed to
serve.” Id.
B. The District Court’s Contrary Reasoning Is Not Convincing.
The district court disagreed with this analysis, J.A.604-29, but its reasoning is
not convincing. As noted above, the district court simply failed to address many of
President Trump’s principal arguments. Furthermore, its own analysis erred.
First, the district court emphasized that “[n]o court … has ever accepted”
presidential immunity from criminal prosecution for official acts. J.A.604. But no
court has ever addressed the question. As noted above, the 234-year tradition of not
prosecuting Presidents for their official acts implies that the power does not exist.
NFIB, 595 U.S. at 119; Seila Law, 140 S. Ct. at 2201; Free Enter. Fund, 561 U.S. at
505; Printz, 521 U.S. at 918.
The district court reasoned that the absence of an express provision in the
Constitution granting the President official immunity implies that no such immunity
exists. J.A.604-06. However, this reasoning would mean that the President has no
immunity from civil suits as well, which contradicts strong Supreme Court
25
precedent. Fitzgerald, 457 U.S. at 747-49. Fitzgerald upheld absolute presidential
immunity from civil liability for official acts “in the absence of explicit
constitutional … guidance.” Id. at 747. Moreover, the district court’s logic would
invalidate other well-established immunity doctrines not explicitly spelled out in the
Constitution. See id. at 751-55.
Next, the district court cited Alexander Hamilton’s statement in The Federalist
No. 69 that there is a “total dissimilitude” between the President and the British
monarch. J.A.605. However, the district court ignored the fact that, in the same
essay, Hamilton wrote that a President could be prosecuted only after he was
impeached and convicted by the U.S. Senate: “The President of the United States
would be liable to be impeached, tried, and, upon conviction of treason, bribery, or
other high crimes or misdemeanors, removed from office; and would afterwards be
liable to prosecution and punishment in the ordinary course of law.” THE
FEDERALIST NO. 69 (emphasis added).
The district court held that original sources “universally affirmed the crucial
distinction that the President would at some point be subject to criminal process.”
J.A.606. That observation—and those sources—are fully consistent with President
Trump’s position. A former President is “subject to criminal process” for his
“unofficial conduct,” Clinton, 520 U.S. at 694; and he is subject to criminal
prosecution for official acts for which he has been impeached and convicted by the
26
Senate, U.S. CONST. art. I, § 3, cl. 7. Both depart from the British monarch’s
exceptionless immunity. The district court’s suggestion that presidential immunity
provides a “‘get-out-of-jail-free’ pass” and establishes the “divine right of kings” is
historically and legally inaccurate. J.A.604, 628.
The district court relies heavily on a 2000 OLC opinion, and the 1973 OLC
Memo and SG Brief that it discusses in detail, addressing whether a sitting President
enjoys complete immunity from indictment, prosecution, and imprisonment from
any criminal charges—whether for private conduct or official acts—while he is still
in office. A Sitting President’s Amenability to Indictment and Criminal Prosecution,
24 U.S. Op. Off. Legal Counsel 222, 2000 WL 33711291 (2000) (“OLC Memo”)
(cited in J.A.604-05, 608-10, 613, 620, 624). The district court contends that the
OLC Memo “expressly and repeatedly concluded that a former President may ‘be
subject to criminal process … after he leaves office or is removed therefrom through
the impeachment process.’” J.A.624 (quoting the OLC Memo, which cites and
discusses in detail Amenability of the President, Vice President and Other Civil
Officers to Federal Criminal Prosecution While in Office (1973)).
The district court misapprehends both the historical and legal context of those
analyses. In 1973 and 2000, questions arose about whether a sitting President might
be criminally charged for acts that included private conduct—i.e., President Nixon’s
27
alleged involvement in a range of potentially criminal private conduct,4 and
President Clinton’s alleged perjury and obstruction of justice in a private lawsuit
based on “unofficial conduct.” Clinton, 520 U.S. at 694. Relatedly, the legal issue
addressed—as the memo’s title proclaims—was whether a sitting President enjoys
complete immunity from any kind of criminal indictment, prosecution, trial, or
punishment, even for private crimes. 2000 WL 33711291, at *1. The question
whether a sitting President has complete immunity from criminal process—even for
private acts committed “before, during, and after” his time in office, id. at *12—is
distinct from the question whether a current or former President enjoys absolute
immunity from prosecution “based upon his official acts.” Fitzgerald, 457 U.S. at
744 (emphasis added).
Given their historic and legal context, it is unsurprising that OLC’s analyses
conclude that the immunity for a “sitting” President terminates when he leaves
office. “Recognizing an immunity from prosecution for a sitting President would
not preclude such prosecution once the President’s term is over or he is otherwise
removed from office by resignation or impeachment.” OLC Memo at *26; see also
id. at *12 (“[T]he constitutional structure permits a sitting President to be subject to
4
See, e.g., The Legal Aftermath: Citizen Nixon and the Law, Time (Aug. 19, 1974),
at https://content.time.com/time/subscriber/article/0,33009,942980-2,00.html
(noting that, upon leaving office, President Nixon faced possible criminal charges
for “subornation of perjury, tax fraud, misprision of a felony, [and] misuse of
Government funds for his private home”) (“Legal Aftermath”).
28
criminal process only after he leaves office or is removed therefrom through the
impeachment process.”). This statement is correct, provided there is no other bar to
such prosecution—such as official-act immunity, which the OLC analyses do not
address, and which applies here.
Thus, when the district court cites the OLC Memo to analyze the burdens on
a sitting President from a criminal prosecution, it analyzes the wrong question.
J.A.613 (citing OLC Memo, at *19). Naturally, the OLC Memo focuses on the
burdens that apply to a still-sitting President, since it addresses “[a] sitting
president’s amenability” to criminal process. 2000 WL 33711291, at *19; id. at *1.
And naturally, some of those unique burdens do not apply to a former President.
Moreover, to the extent that it addresses a related issue, the OLC Memo’s
reasoning strongly supports President Trump here. It emphasizes that impeachment,
not criminal prosecution, provides the structural check on a President’s alleged
misfeasance in office. Id. at *6, 7, 8, 21. The Memo recognizes that “a criminal
proceeding against the President is … necessarily political,” and thus “it would be
‘incongruous’ for a ‘jury of twelve’ to undertake the ‘unavoidably political’ task of
rendering judgment in a criminal proceeding against the President.” Id. at *7. It
emphasizes that immunity does not render “the President … above the law,” because
“the President occupies a unique position within our constitutional order.” Id. at
*12. The Memo supports the view that the threat of future criminal prosecution
29
imposes a far greater, not lesser, deterrent to a President’s bold and fearless action
while in office. See id. at *22-23.
The district court argues that President Trump’s reading of the Impeachment
Judgment Clause “proves too much” because the Clause applies to lower-level
officers who are generally subject to criminal prosecution before leaving office.
J.A.610. But the OLC Memo undercuts this view by emphasizing that the Founders
envisioned that the President would be treated differently under the Clause because
of the unique status of his office. 2000 WL 33711291, at *9 (“[T]he discussion of
the Impeachment Judgment Clause in the convention focused almost exclusively on
the Office of the President, and ‘the Framers did not debate the question whether
impeachment generally must precede indictment.’”); id. at *10 (“To the extent that
the convention did debate the timing of impeachment relative to indictment … , the
convention records show that the Framers contemplated that this sequence should
be mandatory only as to the President. Moreover, the remarks contained in those
records ‘strongly suggest an understanding that the President, as Chief Executive,
would not be subject to the ordinary criminal process.’”) (emphasis added)
(quotations omitted). Likewise, the Supreme Court has “long recognized that the
scope of Presidential immunity from judicial process differs significantly from that
of Cabinet or inferior officers.” Franklin, 505 U.S. at 826 (Scalia, J., concurring in
part and concurring in the judgment) (citing cases).
30
The district court argues that criminal immunity would produce “implausibly
perverse results” because it might allow some Presidents to escape punishment for
official-act crimes in marginal cases. J.A.610-11. The OLC Memo addresses very
similar concerns about potential underenforcement and concludes that those
concerns do not outweigh the needs of the President’s unique office and functions.
OLC Memo, 2000 WL 33711291, at *26-27. The Constitution establishes a
powerful structural check to prevent political factions from abusing the formidable
threat of criminal prosecution to disable the President and attack their political
enemies. Under the Constitution’s balanced, structural approach, a President may
be prosecuted, but only if he is first impeached, tried, and convicted by the U.S.
Senate. U.S. CONST. art. I, § 3, cl. 7. The Constitution opens the door to such
prosecutions, but requires a strong political consensus—i.e., the participation of the
political branches, including a supermajority of the U.S. Senate, the Republic’s
traditional “cooling saucer”—before such a drastic action can be taken. See id.
Accordingly, the Supreme Court has repeatedly emphasized that impeachment, not
prosecution, provides the principal check and deterrent to a President’s malfeasance
in his official acts. Clinton, 520 U.S. at 696; Fitzgerald, 457 U.S. at 757.
The mere possibility of under-enforcement in marginal cases does not “license
a President’s criminal impunity,” J.A.611, nor cast doubt on this system of checks
and balances. Every structural protection in the Constitution necessarily creates the
31
possibility of under-enforcement—that is a feature, not a bug, of the separation of
powers. “While the separation of powers may prevent us from righting every wrong,
it does so in order to ensure that we do not lose liberty.” Morrison v. Olson, 487
U.S. 654, 710 (1988) (Scalia, J., dissenting); see also INS v. Chadha, 462 U.S. 919,
944 (1983) (“[T]he fact that a given law or procedure is efficient, convenient, and
useful in facilitating functions of government, standing alone, will not save it if it is
contrary to the Constitution.”).
The district court reasoned that “the Supreme Court has largely rejected
similar claims of a ‘chilling effect’ from the possibility of future criminal
proceedings.” J.A.614 (citing United States v. Nixon, 418 U.S. 683, 712 (1974)); see
also J.A.618-19. But Nixon addressed a far less direct threat to the Presidency—i.e.,
the threat that aides might be deterred from giving candid advice by the prospect that
their communications might someday be subject to a criminal subpoena. See 418
U.S. at 686. That bears no resemblance to the threat of personal criminal indictment,
prosecution, and imprisonment directly against the President himself for his official
acts.
Next, the district court offered that criminal immunity is unnecessary because
Presidents should just not commit federal crimes. J.A.615; see J.A.616 (“Every
President will face difficult decisions; whether to intentionally commit a federal
crime should not be one of them.”). The Founders, by contrast, correctly anticipated
32
the risk of manipulation of vaguely defined “crimes” by political factions. James
Madison, for example, explained the provision of a specific definition of “Treason”
in Article III, § 3, clause 1, by stating that it was devised to prevent political factions
from devising “new fangled and artificial treasons, [which] have been the great
engines, by which violent factions, the natural offspring of free governments, have
usually wreaked their alternate malignity on each other.” THE FEDERALIST NO. 47
(Madison) (emphasis added). Then-Attorney General Robert Jackson expounded
the same concern in 1940, emphasizing the sweeping breadth of federal criminal
statutes, and describing therefore “the most dangerous power of the prosecutor” as
the power to “pick[] the man and then search[] the law books … to pin some offense
on him.” R. Jackson, The Federal Prosecutor, Address Delivered at the Second
Annual Conference of United States Attorneys (April 1, 1940) (quoted in Morrison,
487 U.S. at 728 (Scalia, J., dissenting)). The instant indictment of President
Trump—which dramatically stretches the language of vague criminal statutes in
novel interpretations in an attempt to criminalize core political speech and advocacy,
J.A.443-454, 575-583—vividly illustrates these predictions. See McDonnell v.
United States, 579 U.S. 550, 575 (2016).
The district court incorrectly discounted the risk of future prosecutions, stating
that “[d]espite Defendant’s doomsaying, he points to no evidence that his criminal
liability in this case will open the gates to a waiting flood of future federal
33
prosecutions.” J.A.617. Yet the recent history of presidential impeachment
contradicts the district court. In the 209 years from 1789 to 1998, there was one
impeachment of a President—Andrew Johnson in 1868. In the last 25 years, there
have been three, with a fourth currently under consideration by the House of
Representatives. In just over two decades, Presidential impeachment changed from
virtually unthinkable to a fixture of interbranch politics. And impeachment faces
formidable structural checks—it must be voted by a majority of the House, with a
supermajority of the Senate required to convict. Criminal prosecution, by contrast,
requires only a single enterprising prosecutor and a compliant grand jury drawn from
a tiny sector of America.
The district court then pointed to the “robust procedural safeguards attendant
to federal criminal prosecutions.” J.A.617-18. Again, the OLC Memo contradicts
this analysis, by emphasizing the inherent, highly politicized nature of any
prosecution of a former President. It recognizes that “a criminal proceeding against
the President is … necessarily political,” and thus “it would be ‘incongruous’ for a
‘jury of twelve’ to undertake the ‘unavoidably political’ task of rendering judgment
in a criminal proceeding against the President.” 2000 WL 33711291 at *7. The
district court emphasized that “the prosecutor, judge, and all twelve petit jurors
[must] agree that the charges are legitimate and have been proven beyond a
reasonable doubt.” J.A.618. But the OLC Memo emphasizes the inappropriateness
34
of having a jury sit in judgment over a President. 2000 WL 33711291, at *7-8. So,
too, does the Supreme Court. Martin, 25 U.S. at 32-33; cf. Tenney, 341 U.S. at 377;
see also Kavanaugh, supra, at 2159 (arguing that the “repercussions” of criminal
proceedings against a President “if they are to occur, should not result from the
judgment of a single prosecutor—whether it be the Attorney General or special
counsel—and a single jury”). “Prosecution or nonprosecution of a President
is … inevitably and unavoidably a political act.” Kavanaugh, supra, at 2159.
The district court reasoned that criminal immunity is unnecessary because
“the violations require criminal intent.” J.A.615. The Supreme Court rejected this
argument in Fitzgerald. The dissent argued that civil immunity was unnecessary
because, under Harlow v. Fitzgerald, 457 U.S. 800 (1982), “the President, were he
subject to civil liability, could be held liable only for an action that he knew, or as an
objective matter should have known, was illegal and a clear abuse of his authority
and power.” 457 U.S. at 782 (White, J., dissenting). The majority, however, rejected
this argument and adopted the rule of absolute presidential immunity.
The district court emphasized the strong public interest in criminal
proceedings. J.A.618-19. But when it comes to the prosecution of a President, the
Constitution strikes a balance that gives “grave weight” to those interests. Id. It
allows a President to be prosecuted for purely private acts, and even for official acts
35
for which he has been impeached and convicted by the Senate. The district court
had no warrant to re-balance what the Constitution has already balanced.
The district court argues that “[d]espite their other vehement disagreements in
Fitzgerald, all nine Justices unanimously endorsed” the denial of criminal immunity
“with respect to former Presidents.” J.A.619. Not so. The majority opinion in
Fitzgerald merely noted that, in United States v. Nixon, “the exercise of jurisdiction
[was] held warranted” over the President “to vindicate the public interest in an
ongoing criminal prosecution,” 457 U.S. at 754, and it “recognized … that there is a
lesser public interest in actions for civil damages than, for example, in criminal
prosecutions,” id. at 754 n.37. It did not purport to decide whether absolute
immunity extends to criminal prosecutions for official acts. See id. Chief Justice
Burger’s concurrence, likewise, merely recognized that the Court was not addressing
or deciding whether absolute immunity extended beyond civil liability. Id. at 759.
Moreover, Justice White’s dissent contended that the majority’s reasoning strongly
supports criminal immunity—the same argument that President Trump makes here.
See id. at 765, 780 (White, J., dissenting).
Regarding the prospect of criminal prosecutions from approximately 2,300
local prosecutors, the district court suggests that such prosecutions “might run afoul
of the Supremacy Clause,” and thus they could be defended on that ground on a case-
by-case basis. J.A.616 (emphasis added) (citing Vance, 140 S. Ct. at 2428). This is
36
true, but insufficient. The OLC Memo rejects similar reasoning: “[A] categorical
rule against indictment or criminal prosecution is most consistent with the
constitutional structure, rather than a doctrinal test that would require the court to
assess whether a particular criminal proceeding is likely to impose serious burdens
upon the President.” 2000 WL 33711291 at *25 (emphasis added).
The district court emphasized the “distinctly communal character” of criminal
law. J.A.620. This overlooks the national “communal character” of the Presidency.
The Presidency “implicate[s] a uniquely important national interest, because the
President and the Vice President of the United States are the only elected officials
who represent all the voters in the Nation.” Anderson v. Celebrezze, 460 U.S. 780,
794–95 (1983). The President constitutes “a single head in whose choice the whole
Nation has a part, making him the focus of public hopes and expectations.”
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 653 (1952) (Jackson, J.
concurring). He is responsible for directing the entire Executive Branch and, in the
field of foreign affairs, is “the sole organ of the federal government ... .” United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936). This nationwide
interest in the Presidency makes it particularly inappropriate for a jury drawn from
a local “commun[ity],” J.A.620, to sit in judgment over the President’s official acts.
The district court argued that “Congress has spoken by criminalizing the
conduct with which the Defendant is charged,” and that this puts the President’s
37
power “at its lowest ebb.” J.A.621 (quoting Youngstown, 343 U.S. at 637 (Jackson,
J., concurring)). But Youngstown addressed the availability of injunctive relief
against inferior executive officers—not prosecuting the President for official acts.
See Franklin, 505 U.S. at 828 (Scalia, J., concurring in part and concurring in the
judgment) (citing Youngstown for this point). When it comes to the far different—
and more intrusive—prospect of Congress purporting to criminalize a President’s
official acts, and the Judicial Branch purporting to convict and imprison him for
them, separation-of-powers principles weigh heavily in the opposite direction.
“Unless the other branches are to be entirely subordinated to the Judiciary, we cannot
direct the President to take a specified executive act or the Congress to perform
particular legislative duties.” Id. at 829. Nor can the Judicial Branch throw the
President into prison for allegedly failing to do so. U.S. CONST. art. II, § 1.
The district court cited dicta in O’Shea v. Littleton, 414 U.S. 488, 503 (1974),
to argue that no judge-created immunity doctrine can trump an act of Congress.
J.A.621. Citing Gravel, 408 U.S. at 627, O’Shea stated that “we have never held
that the performance of the duties of judicial, legislative, or executive officers,
requires or contemplates” criminal immunity, and that “the judicially fashioned
doctrine of official immunity does not reach ‘so far as to immunize criminal conduct
proscribed by an Act of Congress.” Id. The district court interprets this statement
as abolishing all official-immunity doctrines from federal criminal prosecution,
38
J.A.621, but so interpreted, this statement is incorrect. As noted above, the Supreme
Court has recognized both legislative and judicial immunity from criminal
prosecution for official acts. Gravel does not call these precedents into doubt—it
addressed the existence of a “nonconstitutional testimonial privilege” arising from
the Speech and Debate Clause, not the existence of criminal immunity. 408 U.S. at
627. In any event, the dicta in both cases appear to make a much narrower claim—
i.e., that some civil-rights statutes might uniquely abrogate absolute judicial
immunity. No such claim is made here.
Citing United States v. Lee, 106 U.S. 196, 220 (1882), the district court likened
presidential immunity from criminal prosecution to the “divine right of kings,” and
held that “‘[n]o man in this country,’ not even the former President, ‘is so high that
he is above the law.’” J.A.628; see also J.A.622. But in Butz—also citing Lee—the
Court rejected the same reasoning and held that absolute immunity does not render
an official “above the law.” 438 U.S. at 506. Quoting Lee’s statement that “no man
… is above the law,” Butz held that this principle is consistent with the recognition
of absolute immunity where, as here, history and public policy warrant immunity.
“In light of this principle,” Butz held, “federal officials who seek absolute exemption
from personal liability for unconstitutional conduct must bear the burden of showing
that public policy requires an exemption of that scope.” Id. Butz then stated that
absolute immunity applies in “those exceptional situations where it is demonstrated
39
that absolute immunity is essential for the conduct of the public business.” Id. at
507. The Presidency, of course, presents the most “essential” of all cases. Id.; see
also Fitzgerald, 457 U.S. at 750 (citing Butz and holding that “[t]he President’s
unique status under the Constitution distinguishes him from other executive
officials”). Likewise, the district court’s reasoning overlooks that, under the
Impeachment Judgment Clause, a former President is subject to prosecution for
official acts—provided that he is first impeached and convicted by the political
branches.
Citing the OLC analyses, the district court argued that the Executive Branch
has rejected the President’s absolute immunity from prosecution. J.A.624-25. Not
so. The OLC analyses address whether the President is immune from any criminal
process—even for purely private crimes, committed at any time—while he is still in
office. They do not analyze the President’s criminal immunity “based upon his
official acts.” Fitzgerald, 457 U.S. at 744 (emphasis added). The OLC memos’
reasoning supports the recognition of such immunity. See supra.
The district court relied on President Ford’s prophylactic pardon of President
Nixon. J.A.625. The district court draws exactly the wrong conclusion. President
Ford’s issuance of a prophylactic pardon to prevent a potentially bitter, protracted,
divisive prosecution of a former President, J.A.625, reinforces the political and
constitutional tradition against prosecuting Presidents—it does not undermine it. In
40
any event, the allegations against President Nixon included alleged crimes in private
conduct, see Legal Aftermath, supra, so the pardon provides no counterexample to
official-act immunity.
C. The Conduct Alleged in the Indictment Falls Within the Scope of

President Trump’s Official Responsibilities.
Because the district court held that criminal immunity does not exist, it did
not address whether the five types of conduct charged in the indictment fall within
the outer perimeter of the President’s official duties. J.A.628-29. After upholding
criminal immunity, the Court should remand for the district court to consider these
questions in the first instance. See Blassingame, 87 F.4th at 29. If the Court reaches
these questions, to avoid duplicative briefing, President Trump incorporates by
reference his briefing in the trial court, J.A.357-81; J.A.487-93.
Given the existence of criminal immunity, the scope of immunity should
extend at least as far as civil immunity, i.e., to the “‘outer perimeter’ of [the
President’s] official responsibility.” Fitzgerald, 457 U.S. at 756; J.A.357-59. The
test is broad. “When an appropriately objective, context-specific assessment yields
no sufficiently clear answer in either direction, the President … should be afforded
immunity.” Blassingame, 87 F.4th at 21.
In assessing whether immunity applies to Presidential conduct, courts must
look to the “nature of the act itself,” Stump v. Sparkman, 435 U.S. 349, 362 (1978)—
not to its allegedly unlawful manner or purpose. Fitzgerald, 457 U.S. at 756;
41
Bradley v. Fisher, 80 U.S. 335, 354 (1871); Spalding, 161 U.S. at 494, 498; Pierson,
386 U.S. at 554; Barr, 360 U.S. at 575; Gregoire, 177 F.2d at 581 (Hand, J.);
Blassingame, 87 F.4th at 20-21; see also J.A.359-62 (citing many cases).
Further, for a President’s official acts, “there is not always a clear line between
his personal and official affairs,” so many acts may have a dual character. Trump v.
Mazars USA, LLP, 140 S. Ct. 2019, 2034 (2020); see also Blassingame, 87 F.4th at
20-21.
Under these standards, all five types of conduct alleged in the indictment
constitute official acts. They all reflect President Trump’s efforts and duties,
squarely as Chief Executive of the United States, to advocate for and defend the
integrity of the federal election, in accord with his view that it was tainted by fraud
and irregularity.
First, President Trump’s public statements and tweets about alleged fraud and
irregularity in the federal election fall within the outer perimeter of Presidential duty,
to which communicating with the public on matters of federal concern is absolutely
central. See Trump v. Hawaii, 138 S. Ct. 2392, 2417-18 (2018); Barr, 360 U.S. at
568, 574-75; JEFFREY K. TULIS, THE RHETORICAL PRESIDENCY 4 (2017); see also
Pleasant Grove City v. Summum, 555 U.S. 460, 467-68 (2009); J.A.364-69. This is
especially apparent with respect to President Trump’s tweets; his Twitter account has
been held to be an official government channel of communication based on
42
“overwhelming” evidence. Knight First Amend. Inst. at Columbia Univ. v. Trump,
928 F.3d 226, 236 (2d Cir. 2019), judgment vacated as moot, 141 S. Ct. 1220 (2021).
President Trump’s other public statements are also plainly official. Cf. Blassingame,
87 F.4th at 30 (directing further factfinding to determine whether some statements,
also alleged in the indictment here, are official acts).
Second, President Trump’s communications with the U.S. Department of
Justice about investigating widespread reports of election fraud, and deliberating
about replacing the Acting Attorney General, are quintessential Presidential acts.
The President shall “take Care that the Laws be faithfully executed,” U.S. CONST.
art. II, § 3, which include the numerous prohibitions on federal election crime. See,
e.g., 18 U.S.C. §§ 241, 242, 611, 911, 1015(f); 52 U.S.C. §§ 10307(c), 10307(e),
20511(1), 20511(2)(A), 20511(2)(B), 30120, 30124; see also U.S. Dep’t of Justice,
Federal Prosecution of Election Offenses (8th ed. 2017),
https://www.justice.gov/criminal/file/1029066/download. Directing the Attorney
General to enforce these falls squarely within the Take Care power. Office & Duties
of Attorney General, 6 U.S. Op. Atty. Gen. 326, 335 (1854); Ponzi v. Fessenden, 258
U.S. 254, 262 (1922). Deliberating about whether to replace a Cabinet-level officer
is a core exercise of the appointment and removal power. U.S. CONST. art. II, § 2,
cl. 2; Myers v. United States, 272 U.S. 52, 122 (1926); see also Prosecution for
Contempt of Congress of an Executive Branch Official Who Has Asserted a Claim
43
of Executive Privilege, 8 U.S. Op. O.L.C. 101, 113 (1984) (quoting 1 Annals of
Congress 481 (1789)); In re Sealed Case, 121 F.3d 729, 752–53 (D.C. Cir. 1997)
(deciding to remove the Secretary of Agriculture is a “quintessential and
nondelegable Presidential power”).
Third, communications with state officials about their exercise of official
duties with respect to a federal election falls within a President’s official duties.
J.A.371-75. The President’s Take Care duty “include[s] the rights, duties, and
obligations growing out of the constitution itself … and all the protection implied by
the nature of the government under the constitution.” Cunningham v. Neagle, 135
U.S. 1, 64 (1890); see also Fitzgerald, 457 U.S. at 756 (adopting a broad view of the
scope of immunity instead of parsing specific presidential “functions”). This
includes taking steps to ensure the integrity of federal elections, such as
communicating with state officials who play a critical role in administering those
federal elections. Presidential electors “exercise federal functions under, and
discharge duties in virtue of authority conferred by, the Constitution of the United
States.” Burroughs v. United States, 290 U.S. 534, 545 (1934); see also Celebrezze,
460 U.S. at 794-95; Exec. Order 14019, 86 Fed. Reg. 13623-27; Br. for U.S. as
Amicus Curiae at 12, Blassingame, 87 F.4th at 1 (Nos. 22-5069, 22-7030, 22-7031)
(“Blassingame Amicus Br.”).
44
Fourth, communicating with Members of Congress, including the Vice
President in his capacity as President of the Senate, about their exercise of their
official duties lies at the core of Presidential responsibility. J.A.375-78. The
President has intimate and extensive responsibility in the legislative process. U.S.
CONST. art. I, § 7, cl. 2-3. Article II specifically provides that the President
“recommend to [Congress’s] Consideration such Measures as he shall judge
necessary and expedient.” U.S. CONST. art. II, § 3. This includes the Executive
Branch “mak[ing] its views known to Congress on all matters in which it has
responsibilities, duties, and opinions.” Lobbying by Executive Branch Personnel,
U.S. Op. O.L.C. Supp. 240, 243-45 (1961) (gathering sources); see also id. at 244
(quoting H.R. Rep. No. 81-3138, at 52); see also Clinton Rossiter, The American
Presidency 108 (2d rev. ed. 1960); Blassingame Amicus Br. 11. Historical precedent
from President Grant’s intervention in the disputed Hayes-Tilden election supports
this conclusion. See 28 PAPERS OF ULYSSES S. GRANT 19-20, 75-78, 80–81 (ed. John
Y. Simon 2005), https://scholarsjunction.msstate.edu/usg-volumes/27/.
Fifth, organizing contingent slates of electors to support the President’s
advocacy to the Vice President and Congress is likewise an official act. J.A.378-81.
The indictment itself alleges that these acts were intertwined with President Trump’s
attempts to lobby the Vice President and Members of Congress. J.A.28-29, 44-45,
55-61. Thus, they fall under the President’s official duties both because those duties
45
extend to “the rights, duties, and obligations growing out of the constitution itself”
and “all the protection implied by the nature of the government under the
constitution,” Neagle, 135 U.S. at 64; see also U.S. CONST. art. II, § 1, cl 2;
Burroughs, 290 U.S. at 545, and because they are necessary and preparatory to, and
thus intertwined with, the plainly official acts of communicating with Congress
about the certification of the federal election, see, e.g., Prince v. Hicks, 198 F.3d 607,
612 (6th Cir. 1999); Guzman–Rivera v. Rivera–Cruz, 55 F.3d 26, 29 (1st Cir. 1995).
II. The Prosecution Is Barred by the Impeachment Judgment Clause and

Principles of Double Jeopardy.
Here, President Trump was impeached and acquitted by the Senate for the
same and closely related conduct to that alleged in the indictment. H. RES. 24 (117th
Cong. 1st Sess.), https://www.congress.gov/bill/117th-congress/house-
resolution/24/text. The Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7,
mandates reversal because it incorporates a Double Jeopardy principle: A President
who is acquitted by the Senate cannot be prosecuted for the acquitted conduct.
That follows from the text of the Clause. It says that “the Party convicted shall
nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment,
according to Law.” Id. (emphasis added). By specifying that “the Party convicted”
is subject to criminal prosecution, the clause “implies” that the Party who is not
convicted is not subject to criminal prosecution. Scalia & Garner, supra, at 107.
46
This is a straightforward application of the canon expressio unius est exclusio
alterius.
To be sure, “[f]inding the negative implication of a” legal writing “is a
context-specific exercise.” Mercy Hosp., Inc. v. Azar, 891 F.3d 1062, 1069 (D.C.
Cir. 2018). But the context of the Impeachment Judgment Clause strongly supports
the negative implication that a Senate-acquitted President may not be prosecuted.
Indeed, even the OLC memo the district court relied on in discussing Double
Jeopardy, concedes the argument “has some force.” Whether a Former President
May Be Indicted and Tried for the Same Offenses for Which He Was Impeached by
the House and Acquitted by the Senate, 24 Op. O.L.C. 110, 114 (2000) (“Double
Jeopardy Memo”).
The concession is an understatement. In England, “the House of Lords could
not only remove officials from office and disqualify them from holding office, but
also impose a full range of criminal punishments on impeachment defendants.” Id.
at 126. The Impeachment Judgment Clause altered that by limiting the punishments
the Senate could impose to just removal and disqualification and then creating an
exception to Double Jeopardy by saying a convicted officer could be criminally
prosecuted. See id. at 126–27; see also U.S. CONST., art. I, § 3, cl. 7. But nothing
indicates it altered the criminal nature of the impeachment process. To the contrary,
47
the second proviso in the Clause is unnecessary if impeachment and conviction have
no jeopardy implications.
That reading is to be avoided. See, e.g., Freeman v. Quicken Loans, Inc., 566
U.S. 624, 635 (2012) (surplusage canon). Since the Clause references only “the
Party Convicted,” the usual rules of Double Jeopardy apply to acquittals—they
“bar . . . a subsequent prosecution for the same offense.” Ball v. United States, 163
U.S. 662, 671 (1896). Indeed, OLC admits this reading is reasonable. See Double
Jeopardy Memo, 24 Op. O.L.C. at 116–18.
Justice Story certainly found it persuasive. In the section of the Commentaries
cited by both the district court and OLC, see J.A.641; 24 Op. O.L.C., at 125–26, he
notes that under the British system, where the House of Lords could “pronounce a
full and complete sentence,” an acquittal would bar further prosecution. 3 Story,
supra, § 780. But under the constitutional structure, where impeachment and
conviction result in removal and disqualification, Story recognized “that provision
should be made” authorizing additional prosecution, or else there would be “extreme
doubt, whether ... a second trial for the same offence could be had, either after an
acquittal, or a conviction . . . .” Id. The only provision for future criminal
prosecution in the Impeachment Judgment Clause is for “the Party convicted . . . .”
U.S. CONST., art. I, § 3, cl. 7. OLC, to be sure, said that Justice Story believed the
Impeachment Judgment Clause “removed any doubt about a double jeopardy bar in
48
the case of Senate acquittals ... .” Double Jeopardy Memo, 24 Op. O.L.C. at 126.
There is no analysis behind that statement, which makes sense because the assertion
is baseless. The express reference to prosecution after conviction does not make
“provision”—to borrow from Justice Story—for prosecution after acquittal. The
opposite is true.
The district court pointed to a 1973 OLC memorandum, J.A.607-08; but OLC
subsequently conceded that its 1973 memorandum missed the complexity of “the
relationship between [the Impeachment Judgment Clause] and double jeopardy
principles,” OLC Memo, 24 Op. O.L.C. at 224 n.5. To be sure, OLC adheres to the
1973 memo’s decision, see id., but its reasoning is unconvincing. It rests on the
assumption that “the framers and ratifiers most heavily relied” on “formulations of ”
Double Jeopardy that “restricted its reach to cases where the defendant’s life was at
stake,” 24 Op. O.L.C. at 127.
But if that is what the Founders believed, there was no reason to say a
convicted officer could be prosecuted; Double Jeopardy would be out of the picture.
It also assumes that the Founders departed from the British model explicitly in one
way (by limiting the punishments the Senate could impose) but implicitly in another
way (by not treating impeachments like a criminal proceeding). That is highly
unlikely. Indeed, OLC acknowledged that State constitutions typically say if they
intend an impeachment acquittal to result in further prosecution. Id. at 115. That
49
includes State constitutions at the time of the Founding. See id. at 116 (mentioning
Pennsylvania’s 1790 charter). And New York’s constitution, which “contained
language strikingly similar to that” in the U.S. Constitution, and “was amended [in
1846] to refer to ‘the party impeached’ rather than ‘the party convicted’ precisely
because of a concern that the latter phrase might be understood to give immunity
from criminal prosecution to those who had been impeached and acquitted.” Id. at
116; see id. at 116 n.12.
Likewise, “[t]he Framers . . . appeared to anticipate that a President who
commits serious wrongdoing should be impeached by the House and removed from
office by the Senate—and then prosecuted thereafter.” Kavanaugh, supra, at 2158.5
Hamilton thrice said criminal prosecution can only follow impeachment and
5
Many of the quotes the district court and OLC provide are unilluminating. The
letter from Edmund Pendleton to James Madison is an example. See Double
Jeopardy Memo, 24 Op. O.L.C. at 124–25; J.A.640. The statement is made in a
paragraph providing general criticisms about impeachment; it involves other issues
Pendleton had with the Senate; and the letter itself is a list of Pendleton’s thoughts
about the Constitution in private correspondence. See Letter to James Madison from
Edmund Pendleton, 8 October 1787,
https://founders.archives.gov/documents/Madison/01-17-02-0352. Madison’s reply
is similar. See JA.640. He does not address impeachment, instead focusing on other
points Pendleton made; the most he says is that Pendleton’s remarks are “in general
extremely well founded.” Letter from James Madison to Edmund Pendleton, 28
October 1787, https://founders.archives.gov/documents/Madison/01-10-02-0156.
That is not a ringing endorsement of Pendleton’s letter, much less an endorsement
of any view on whether an acquitted officer can be prosecuted. The Double Jeopardy
Memo references a commentary by St. George Tucker that speculated an acquittal
would not bar further prosecution. 24 Op. O.L.C. at 125. That also has limited
persuasive value, by a similar analysis.
50
conviction. See FEDERALIST NO. 65; FEDERALIST NO. 69; FEDERALIST NO. 77.
Indeed, in discussing impeachment in Federalist No. 65 he said, “The punishment
which may be the consequence of conviction upon impeachment, is not to terminate
the chastisement of the offender. After having been sentenced to a perpetual
ostracism from the esteem and confidence, and honors and emoluments of his
country, he will still be liable to prosecution and punishment in the ordinary course
of law.” (Emphases added). The constant linkage of criminal punishment as
following conviction but not impeachment simpliciter is compelling evidence that it
did not follow impeachment acquittal.
Then there is James Wilson’s statement that “the President … ‘is amenable to
[the laws] in his private character as a citizen, and in his public character by
impeachment.’ ” Clinton, 520 U.S. at 696 (quoting James Wilson in 2 J. ELLIOT,
DEBATES ON THE FEDERAL CONSTITUTION 480 (2d ed. 1863)). Other statements by
Charles Lee, see Marbury, 5 U.S. at 149, and Chief Justice Marshall likewise point
to impeachment as the primary means of addressing presidential malfeasance. To
the same effect is a Gouverneur Morris statement OLC discussed; he said that “ ‘[t]he
Executive ought therefore to be impeachable for treachery; Corrupting his electors,
and incapacity . . . . For the latter he should be punished not as a man, but as an
officer, and punished only by degradation from office.’ ” Double Jeopardy Memo,
24 Op. O.L.C. at 128.
51
Those statements affirm that punishing a President for alleged official
malfeasance has two parts: impeachment and conviction in Congress, which may
then be followed by criminal prosecution.6 It also highlights that the Founders
adapted the British method of impeachment, see, e.g., FEDERALIST NO. 65, but
bifurcated it into a political part, which the Senate controls; and a criminal part,
which belongs to the judiciary, see 3 Story, Commentaries § 784 (making the same
observation). The British impeachment process starts and ends with its legislative
entities. Id. § 742. It stands to reason that the Framers would conclude that Congress
should have the dominant role in impeachment and conviction—with criminal
prosecutions taking a back seat. That is consistent with the emphasis on the political
process of impeachment as the primary form of checking the President, and also with
the Senate’s acquittal having binding effect on future criminal prosecutions.
The text, context, and history of the Impeachment Judgment Clause thus
confirm that an acquittal bars prosecution for the same or closely related conduct.
6
The district court notes Wilson said, during the Pennsylvania ratification
convention, that Senators who are impeached but not convicted “may be tried by
their country.” See J.A.640 (quotations omitted); see also Double Jeopardy Memo,
24 Op. O.L.C. at 124. First, this statement is inconsistent with the more considered
views of Hamilton. Second, it was made in the context of discussing impeachment
and conviction of Senators. See Double Jeopardy Memo, 24 Op. O.L.C. 122 n.34.
The more relevant view is his discussion of how impeachment worked for
Presidents, which is discussed here.
Similarly, the statement of Representative Dana referenced by the district
court and OLC, see id. at 125; J.A.641, involved senatorial impeachment and,
furthermore, were made over a decade after the Constitution’s ratification.
52
That leaves the district court’s policy disagreements with the Founders, disguised by
the district court as “structural considerations.” The district court pointed to two:
that “impeachment and prosecution serve distinct goals within the separation of
powers,” and that the Senate “may acquit . . . even when it finds that an official
committed the acts alleged.” J.A.639-40.
The Double Jeopardy Memo said the first is “perhaps the most fundamental.”
24 Op. O.L.C. at 130. But it and the district court, J.A.640, both missed what the
Founders recognized: That punishment of the President is irreducibly political and
so belongs primarily to the branch most politically accountable—Congress and,
ultimately, the Senate. “The subjects of [impeachment] are those offenses which
proceed from the misconduct of public men ... . They are of a nature which may with
peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries
done immediately to the society itself.” FEDERALIST NO. 65 (Hamilton). “[T]he
Senate [is] the most fit depositary of this important trust.” Id.
Madison underscores that point. He cautioned against “new fangled and
artificial treasons,” which “have been the great engines, by which violent factions,
the natural offspring of free governments, have usually wreaked their alternate
malignity on each other.” FEDERALIST NO. 47. By requiring widespread political
consensus within the U.S. Senate—the historical “cooling saucer” of the Republic—
before a President can be criminally prosecuted, the Impeachment Judgment Clause
53
protects Presidents from “new fangled and artificial treasons.” Id. And contrary to
the district court, J.A.641-42, the Supreme Court has repeatedly affirmed the view
that impeachment is political—and so is the principal, constitutionally prescribed
method to address Presidential malfeasance. See Clinton, 520 U.S. at 696;
Fitzgerald, 457 U.S. at 757.
The Impeachment Judgment Clause thus protects Presidents from harassing
criminal prosecutions by requiring Congress first to make the political judgment that
the President should be convicted. If, as here, the Senate acquits the President, the
Senate has necessarily concluded that the President should remain in office and is
not disqualified from service. For a prosecutor to conclude otherwise undermines
that conclusion—indeed, a successful prosecution voids it—and arrogates to himself
a judgment the Constitution reserves for Congress.
***
Thus, President Trump’s acquittal by the Senate bars prosecution for the
conduct alleged in the indictment.7 Further, the acquittal reinforces President
Trump’s immunity argument. Where, as here, the question is the amenability of the
President to prosecution for an official act, the political concerns are at their apex.
7
The district court’s analysis of the Double Jeopardy Clause, J.A.636-38, misses the
point. The preclusive effect here arises from the Impeachment Judgment Clause,
which incorporates Double Jeopardy principles, but not Double Jeopardy tests
wholesale. Cf. Double Jeopardy Memo, 24 Op. O.L.C. at 113–48 (separately
analyzing the two).
54
Before any single prosecutor can ask a court to sit in judgment of the President’s
conduct, Congress must have approved of it by impeaching and convicting the
President. That did not happen here, and so President Trump has absolute immunity.
CONCLUSION
The district court’s Memorandum Opinion and Order, J.A.599, 647, should be
reversed and the case should be remanded with instructions to dismiss the indictment
with prejudice. In the alternative, the Court should uphold criminal immunity and
remand to the district court to apply the doctrine in the first instance. If the Court
affirms the district court in any respect, President Trump respectfully requests that
the Court stay the issuance of its mandate pending further review, including possible
en banc proceedings and/or Supreme Court review.
Dated: December 23, 2023 Respectfully Submitted,
LAURO & SINGER JAMES OTIS LAW GROUP, LLC

John F. Lauro
Gregory M. Singer /s/ D. John Sauer
400 N. Tampa St., 15th Floor D. John Sauer
Tampa, FL 33602 William O. Scharf
(813) 222-8990 Michael E. Talent
[email protected] 13321 N. Outer Forty Road, Suite 300
St. Louis, Missouri 63017
BLANCHE LAW (314) 562-0031
Todd Blanche [email protected]
Emil Bove
99 Wall St., Suite 4460 Attorneys for President Donald Trump
New York, NY 10005
(212) 716-1250
[email protected]
55
CERTIFICATE OF SERVICE
I hereby certify that, on December 23, 2023, I caused a true and correct copy
of the foregoing to be filed by the Court’s electronic filing system, to be served by
operation of the Court’s electronic filing system on counsel for all parties who have
entered in the case.
/s/ D. John Sauer
56
CERTIFICATE OF COMPLIANCE
This document complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(a)(7)(B) because it contains 12,900 words, excluding those
portions pursuant to Federal Rule of Appellate Procedure 32(f) and Circuit Rule
32(e)(1), according to Microsoft Word.
This document complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because it was prepared in a proportionally spaced
typeface in Microsoft Word utilizing 14-point Times New Roman font.
/s/ D. John Sauer

D. John Sauer
57

Trump Opening Brief With DC Appeals Court Arguing Immunity Claims

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USCA Case #23-3228 Document #2033200 Filed: 12/23/2023 Page 1 of 71

ORAL ARGUMENT SET FOR JANUARY 9, 2024

IN THE UNITED STATES COURT OF APPEALS

UNITED STATES OF AMERICA,

On Appeal from the United States District Court

OPENING BRIEF OF DEFENDANT-APPELLANT

LAURO & SINGER JAMES OTIS LAW GROUP, LLC

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES

A. PARTIES AND AMICI CURIAE

President Donald J. Trump.

Amici Curiae before this Court include, for Appellee:

Donald B. Ayer; John B. Bellinger, III; Barbara Comstock; John C. Danforth;

Attorney; Paul Rosenzweig; Nicholas Rostow; Robert B. Shanks; Christopher

Shays; Michael Shepherd; Larry Thompson; Stanley Twardy; Christine Todd

Whitman; Wendell Willkie, II; Keith E. Whittington; Richard Bernstein

Disclosure Statement: No Disclosure Statement under Federal Rule of

Appellate Procedure 26.1 or under Circuit Rule 26.1 is necessary, as Defendant is

not a corporation or similar entity.

B. RULINGS UNDER REVIEW

• Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031 (consol.), -- F.4th--,

2023 WL 8291481 (D.C. Cir. Dec. 1, 2023) (appeal involving President

Trump and the United States as amicus curiae addressing Presidential

immunity for certain related alleged conduct in the civil context)

entry of an unconstitutional gag order on President Trump’s extrajudicial

/s/ D. John Sauer

CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES.................i

TABLE OF CONTENTS ......................................................................................... iii

TABLE OF AUTHORITIES ...................................................................................... v

GLOSSARY ........................................................................................................... xiii

STATEMENT OF JURISDICTION .......................................................................... 2

STATEMENT OF THE ISSUES ............................................................................... 2

STATEMENT OF THE CASE................................................................................... 3

I. Allegations in the Indictment. .......................................................................... 3

II. Trial Court Proceedings.................................................................................... 4

SUMMARY OF ARGUMENT .................................................................................. 5

STANDARD OF REVIEW ....................................................................................... 8

I. The Prosecution of President Trump Is Barred by Presidential Immunity....... 9

A. Presidential Immunity Includes Immunity from Criminal Prosecution for

1. The separation of powers requires criminal immunity. ......................... 9

2. The Impeachment Judgment Clause presupposes immunity............... 12

3. Early constitutional authorities confirm immunity.............................. 14

4. The common law supports criminal immunity. ................................... 16

5. Criminal immunity draws support from 234 years of history. ............ 17

6. Analogous immunity doctrines support criminal immunity. ............... 18

7. Policy rooted in the separation of powers supports immunity. ........... 21

B. The District Court’s Contrary Reasoning Is Not Convincing. ................. 25

C. The Conduct Alleged in the Indictment Falls Within the Scope of

II. The Prosecution Is Barred by the Impeachment Judgment Clause and

CERTIFICATE OF SERVICE ................................................................................. 56

CERTIFICATE OF COMPLIANCE ....................................................................... 57

Abney v. United States,

Ball v. United States,

Burroughs v. United States,

Cheney v. U.S. Dist. Ct. for D.C.,

Chi. & S. Air Lines v. Waterman S.S. Corp.,

Cohen v. Beneficial Indus. Loan Corp.,

Coinbase, Inc. v. Bielski,

Free Enter. Fund v. Pub. Co. Accounting Oversight Bd.,