Donald Trump’s attorneys on Wednesday asked the Georgia Court of Appeals to order the dismissal of the Fulton County election interference case against the former and future president.
The motion asks the appellate court to decide that both it and Fulton Superior Court Judge Scott McAfee, who has presided over the racketeering case, lack further jurisdiction because it is unconstitutional to prosecute someone about to take the oath of office as president.
“A sitting president is completely immune from indictment or any criminal process, state or federal,” the motion said.
In a statement, Trump’s lead attorney, Steve Sadow, noted that the two federal criminal cases against Trump — the insurrection case in Washington and the classified documents case in Florida — have already been dismissed at the request of U.S. Justice Department special counsel Jack Smith.
The filing asks the appeals court to “confirm its lack of jurisdiction to continue hearing (Trump’s) appeal now that he is President-Elect and will soon become the 47th President of the United States, and then direct the trial court to immediately dismiss the case,” Sadow said. “The filing states that any ongoing criminal proceeding against a sitting president must be dismissed under the U.S. Constitution.”
Credit: Miguel Martinez
Credit: Miguel Martinez
A spokesperson for the Fulton District Attorney’s Office declined to comment on the motion. The filing was made only on behalf of Trump, not the other 14 co-defendants who remain in the sweeping racketeering case.
Fulton DA Fani Willis has suggested she may move ahead with prosecuting Trump, but most legal experts have said that further action against the Republican, if it continues, will not occur until after he leaves office in 2029. But the filing by Trump’s lawyers to dismiss the case altogether has been expected.
The motion largely relies on a memo prepared by the U.S. Justice Department’s Office of Legal Counsel in 2000. It says the Constitution forbids giving “a single prosecutor and grand jury the practical power to interfere with the ability of a popularly elected president to carry out his constitutional functions,” Trump’s motion said.
“Given the potentially momentous political consequences for the nation at stake, there is a fundamental structural incompatibility between the ordinary application of the criminal process and the office of the president,” it added.
The Justice Department memo has been applied only to federal criminal prosecutions of a president. Legal experts have said it has yet to be determined as to whether that can be applied to state prosecutions, such as the one in Fulton County.
But Trump’s motion contends the Constitution’s Supremacy Clause and a number of court precedents extend such immunity to the president-elect. “This is particularly true where, as here, there is compelling evidence of local bias and political prejudice against the president by the local prosecutor, who not only answers to a tiny segment of the American electorate but is acting in clear opposition to the will of the citizens of Georgia as reflected by the recent election results,” the motion said.
Trump, who recently won Georgia with 50.7% of the vote, currently faces eight felonies connected with his efforts to overturn the results of the state’s 2020 election. His attorneys’ motion was filed before the state Court of Appeals because it is considering whether to disqualify Willis and her office from prosecuting the case because of her romantic relationship with former special prosecutor Nathan Wade.
Staff writer Tamar Hallerman contributed to this article.
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