United States v. Trump
Opinion
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 23-257 (TSC) DONALD J. TRUMP,
Defendant.
MEMORANDUM OPINION
The United States has charged former President Donald J. Trump with four counts of
criminal conduct that he allegedly committed during the waning days of his Presidency. See
Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential
immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. 113
(“Constitutional Motion”). 1 For the reasons set forth below, the court will DENY both motions.
I. BACKGROUND
At the motion to dismiss stage, the court assumes the truth of the Indictment’s
allegations. See, e.g., United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
Defendant contends that the charges in the Indictment are based on his “public statements and
tweets about the federal election and certification,” “communications with the U.S. Department
of Justice about investigating elections crimes and possibly appointing a new Acting Attorney
1 Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for selective and vindictive prosecution, ECF No. 116. The court will address those motions separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the Constitutional Motion—in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).
Page 1 of 48 General,” “communications with state officials about the federal election and the exercise of
their official duties with respect to the election,” “communications with the Vice President and
Members of Congress about the exercise of their official duties in the election-certification
proceedings,” and “organizing slates of electors as part of the attempt to convince legislators not
to certify the election against defendant.” Immunity Motion at 3–8 (formatting modified).
Those generalized descriptions fail to properly portray the conduct with which he has been
charged. Accordingly, the court will briefly review the central allegations as set forth in the
Indictment.
Defendant “was the forty-fifth President of the United States and a candidate for re-
election in 2020.” Indictment ¶ 1. “Despite having lost” that election, he “was determined to
remain in power,” so “for more than two months following election day on November 3, 2020,
the Defendant spread lies that there had been outcome-determinative fraud in the election and
that he had actually won.” Id. ¶ 2. He “knew that [those claims] were false,” but “repeatedly
and widely disseminated them anyway—to make his knowingly false claims appear legitimate,
create an intense national atmosphere of mistrust and anger, and erode public faith in the
administration of the election.” Id.; see id. ¶ 12 (listing six such claims). “In fact, the Defendant
was notified repeatedly that his claims were untrue—often by the people on whom he relied for
candid advice on important matters, and who were best positioned to know the facts and he
deliberately disregarded the truth.” Id. ¶ 11. Those people included the Vice President, “senior
leaders of the Justice Department,” the Director of National Intelligence, the Department of
Homeland Security’s Cybersecurity and Infrastructure Security Agency, “Senior White House
attorneys,” “Senior staffers on the Defendant’s 2020 re-election campaign,” state legislators and
officials, and state and federal judges. Id.
Page 2 of 48 “Defendant also pursued unlawful means of discounting legitimate votes and subverting
the election results.” Id. ¶ 4. Specifically, he “targeted a bedrock function of the United States
federal government: the nation’s process of collecting, counting, and certifying the results of the
presidential election.” Id. The Indictment describes that process:
The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it. Through state laws, each of the fifty states and the District of Columbia chose to select their electors based on the popular vote in the state. After election day, the [Electoral Count Act (“ECA”)] required each state to formally determine—or ‘ascertain’—the electors who would represent the state’s voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state’s ascertained electors were required to meet and collect the results of the presidential election—that is, to cast electoral votes based on their state’s popular vote, and to send their electoral votes, along with the state executive’s certification that they were the state’s legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result—thus certifying the winner of the presidential election as president-elect.
Id. ¶ 9.
Defendant, along with at least six co-conspirators, id. ¶ 8, undertook efforts “to impair,
obstruct, and defeat [that process] through dishonesty, fraud, and deceit,” id. ¶ 10. Those efforts
took five alleged forms:
First, they “used knowingly false claims of election fraud to get state legislators and
election officials to subvert the legitimate election results and change electoral votes for the
Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.” Id. ¶ 10(a).
“That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states
to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and
Page 3 of 48 ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the
Defendant.” Id.; see id. ¶¶ 13–52.
Second, they “organized fraudulent slates of electors in seven targeted states (Arizona,
Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic
the procedures that the legitimate electors were supposed to follow under the Constitution and
other federal and state laws.” Id. ¶ 10(b). “This included causing the fraudulent electors to meet
on the day appointed by federal law on which legitimate electors were to gather and cast their
votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they
were legitimate electors.” Id.; see id. ¶¶ 53–69. They “then caused these fraudulent electors to
transmit their false certificates to the Vice President and other government officials to be counted
at the certification proceeding on January 6,” 2021. Id. ¶ 10(b); see id. ¶¶ 53–69.
Third, they “attempted to use the power and authority of the Justice Department to
conduct sham election crime investigations and to send a letter to the targeted states that falsely
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
v. Criminal Action No. 23-257 (TSC) DONALD J. TRUMP,
Defendant.
MEMORANDUM OPINION
The United States has charged former President Donald J. Trump with four counts of
criminal conduct that he allegedly committed during the waning days of his Presidency. See
Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential
immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. 113
(“Constitutional Motion”). 1 For the reasons set forth below, the court will DENY both motions.
I. BACKGROUND
At the motion to dismiss stage, the court assumes the truth of the Indictment’s
allegations. See, e.g., United States v. Weeks, 636 F. Supp. 3d 117, 120 (D.D.C. 2022).
Defendant contends that the charges in the Indictment are based on his “public statements and
tweets about the federal election and certification,” “communications with the U.S. Department
of Justice about investigating elections crimes and possibly appointing a new Acting Attorney
1 Defendant has also moved to dismiss based on statutory grounds, ECF No. 114, and for selective and vindictive prosecution, ECF No. 116. The court will address those motions separately. The Supreme Court has “repeatedly . . . stressed the importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter v. Bryant, 502 U.S. 224, 227 (1991) (citations omitted). The court therefore rules first on the Immunity Motion and the Constitutional Motion—in which Defendant asserts “constitutional immunity from double jeopardy,” United States v. Scott, 464 F.2d 832, 833 (D.C. Cir. 1972).
Page 1 of 48 General,” “communications with state officials about the federal election and the exercise of
their official duties with respect to the election,” “communications with the Vice President and
Members of Congress about the exercise of their official duties in the election-certification
proceedings,” and “organizing slates of electors as part of the attempt to convince legislators not
to certify the election against defendant.” Immunity Motion at 3–8 (formatting modified).
Those generalized descriptions fail to properly portray the conduct with which he has been
charged. Accordingly, the court will briefly review the central allegations as set forth in the
Indictment.
Defendant “was the forty-fifth President of the United States and a candidate for re-
election in 2020.” Indictment ¶ 1. “Despite having lost” that election, he “was determined to
remain in power,” so “for more than two months following election day on November 3, 2020,
the Defendant spread lies that there had been outcome-determinative fraud in the election and
that he had actually won.” Id. ¶ 2. He “knew that [those claims] were false,” but “repeatedly
and widely disseminated them anyway—to make his knowingly false claims appear legitimate,
create an intense national atmosphere of mistrust and anger, and erode public faith in the
administration of the election.” Id.; see id. ¶ 12 (listing six such claims). “In fact, the Defendant
was notified repeatedly that his claims were untrue—often by the people on whom he relied for
candid advice on important matters, and who were best positioned to know the facts and he
deliberately disregarded the truth.” Id. ¶ 11. Those people included the Vice President, “senior
leaders of the Justice Department,” the Director of National Intelligence, the Department of
Homeland Security’s Cybersecurity and Infrastructure Security Agency, “Senior White House
attorneys,” “Senior staffers on the Defendant’s 2020 re-election campaign,” state legislators and
officials, and state and federal judges. Id.
Page 2 of 48 “Defendant also pursued unlawful means of discounting legitimate votes and subverting
the election results.” Id. ¶ 4. Specifically, he “targeted a bedrock function of the United States
federal government: the nation’s process of collecting, counting, and certifying the results of the
presidential election.” Id. The Indictment describes that process:
The Constitution provided that individuals called electors select the president, and that each state determine for itself how to appoint the electors apportioned to it. Through state laws, each of the fifty states and the District of Columbia chose to select their electors based on the popular vote in the state. After election day, the [Electoral Count Act (“ECA”)] required each state to formally determine—or ‘ascertain’—the electors who would represent the state’s voters by casting electoral votes on behalf of the candidate who had won the popular vote, and required the executive of each state to certify to the federal government the identities of those electors. Then, on a date set by the ECA, each state’s ascertained electors were required to meet and collect the results of the presidential election—that is, to cast electoral votes based on their state’s popular vote, and to send their electoral votes, along with the state executive’s certification that they were the state’s legitimate electors, to the United States Congress to be counted and certified in an official proceeding. Finally, the Constitution and ECA required that on the sixth of January following election day, the Congress meet in a Joint Session for a certification proceeding, presided over by the Vice President as President of the Senate, to count the electoral votes, resolve any objections, and announce the result—thus certifying the winner of the presidential election as president-elect.
Id. ¶ 9.
Defendant, along with at least six co-conspirators, id. ¶ 8, undertook efforts “to impair,
obstruct, and defeat [that process] through dishonesty, fraud, and deceit,” id. ¶ 10. Those efforts
took five alleged forms:
First, they “used knowingly false claims of election fraud to get state legislators and
election officials to subvert the legitimate election results and change electoral votes for the
Defendant’s opponent, Joseph R. Biden, Jr., to electoral votes for the Defendant.” Id. ¶ 10(a).
“That is, on the pretext of baseless fraud claims, the Defendant pushed officials in certain states
to ignore the popular vote; disenfranchise millions of voters; dismiss legitimate electors; and
Page 3 of 48 ultimately, cause the ascertainment of and voting by illegitimate electors in favor of the
Defendant.” Id.; see id. ¶¶ 13–52.
Second, they “organized fraudulent slates of electors in seven targeted states (Arizona,
Georgia, Michigan, Nevada, New Mexico, Pennsylvania, and Wisconsin), attempting to mimic
the procedures that the legitimate electors were supposed to follow under the Constitution and
other federal and state laws.” Id. ¶ 10(b). “This included causing the fraudulent electors to meet
on the day appointed by federal law on which legitimate electors were to gather and cast their
votes; cast fraudulent votes for the Defendant; and sign certificates falsely representing that they
were legitimate electors.” Id.; see id. ¶¶ 53–69. They “then caused these fraudulent electors to
transmit their false certificates to the Vice President and other government officials to be counted
at the certification proceeding on January 6,” 2021. Id. ¶ 10(b); see id. ¶¶ 53–69.
Third, they “attempted to use the power and authority of the Justice Department to
conduct sham election crime investigations and to send a letter to the targeted states that falsely
claimed that the Justice Department had identified significant concerns that may have impacted
the election outcome; that sought to advance the Defendant’s fraudulent elector plan by using the
Justice Department’s authority to falsely present the fraudulent electors as a valid alternative to
the legitimate electors; and that urged, on behalf of the Justice Department, the targeted states’
legislatures to convene to create the opportunity to choose the fraudulent electors over the
legitimate electors.” Id. ¶ 10(c); see id. ¶¶ 70–85.
Fourth, “using knowingly false claims of election fraud,” they “attempted to convince the
Vice President to use the Defendant’s fraudulent electors, reject legitimate electoral votes, or
send legitimate electoral votes to state legislatures for review rather than counting them.” Id.
¶ 10(d). “When that failed, on the morning of January 6,” they “repeated knowingly false claims
Page 4 of 48 of election fraud to gathered supporters, falsely told them that the Vice President had the
authority to and might alter the election results, and directed them to the Capitol to obstruct the
certification proceeding and exert pressure on the Vice President to take the fraudulent actions he
had previously refused.” Id.; see id. ¶¶ 86–105.
Fifth, “on the afternoon of January 6,” once “a large and angry crowd—including many
individuals whom the Defendant had deceived into believing the Vice President could and might
change the election results—violently attacked the Capitol and halted the proceeding,” they
“exploited the disruption by redoubling efforts to levy false claims of election fraud and
convince members of Congress to further delay the certification based on those claims.” Id.
¶ 10(e); see id. ¶¶ 106–124.
Based on this conduct, the Indictment charges Defendant with four counts: Conspiracy to
Defraud the United States, in violation of 18 U.S.C. § 371, id. ¶ 6; Conspiracy to Obstruct an
Official Proceeding, in violation of 18 U.S.C. § 1512(k), id. ¶ 126; Obstruction of, and Attempt
to Obstruct, an Official Proceeding, in violation of 18 U.S.C. §§ 1512(c)(2), 2, id. ¶ 128; and
Conspiracy Against Rights, in violation of 18 U.S.C. § 241, id. ¶ 130.
II. LEGAL STANDARD
A criminal defendant may move to dismiss based on a “defect in the indictment,” such as
a “failure to state an offense.” Fed. R. Crim. P. 12(b)(3)(B)(v). That motion may be based—as
it is here—on constitutional challenges to the prosecution, including the assertion of immunity.
See, e.g., United States v. Stone, 394 F. Supp. 3d 1, 8 (D.D.C. 2019). “Because a court’s use of
its supervisory power to dismiss an indictment directly encroaches upon the fundamental role of
the grand jury, dismissal is granted only in unusual circumstances.” United States v. Fischer, 64
F.4th 329, 334–35 (D.C. Cir. 2023) (formatting modified).
Page 5 of 48 III. EXECUTIVE IMMUNITY
Defendant contends that the Constitution grants him “absolute immunity from criminal
prosecution for actions performed within the ‘outer perimeter’ of his official responsibility”
while he served as President of the United States, so long as he was not both impeached and
convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). The
Constitution’s text, structure, and history do not support that contention. No court—or any other
branch of government—has ever accepted it. And this court will not so hold. Whatever
immunities a sitting President may enjoy, the United States has only one Chief Executive at a
time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents
enjoy no special conditions on their federal criminal liability. Defendant may be subject to
federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts
undertaken while in office.
A. Text
In interpreting the Constitution, courts ordinarily “begin with its text,” City of Boerne v.
Flores, 521 U.S. 507, 519 (1997), but there is no provision in the Constitution conferring the
immunity that Defendant claims. The Supreme Court has already noted “the absence of explicit
constitutional . . . guidance” on whether a President possesses any immunity. Nixon v.
Fitzgerald, 457 U.S. 731, 747 (1982) (“Fitzgerald”); see also United States v. Nixon, 418 U.S.
683, 705–06 n.16 (1974) (“Nixon”) (observing “the silence of the Constitution” regarding a
President’s immunity from criminal subpoenas). The Executive Branch has likewise recognized
that “the Constitution provides no explicit immunity from criminal sanctions for any civil
officer,” including the current President. A Sitting President’s Amenability to Indictment and
Criminal Prosecution, 24 U.S. Op. Off. Legal Counsel 222, 2000 WL 33711291, at *9 (2000)
(“OLC Immunity Memo”) (quoting Memorandum for the United States Concerning the Vice Page 6 of 48 President’s Claim of Constitutional Immunity at 4 (filed Oct. 5, 1973), In re Proceedings of the
Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the
United States (D. Md. 1973) (No. 73-965) (“1973 SG Memo”), available at 27 Hofstra L. Rev.
677, 775–97 (Appendix)) (alterations adopted). There is no “Presidential Immunity” Clause.
The lack of constitutional text is no accident; the Framers explicitly created immunity for
other officials. The Constitution’s Speech and Debate Clause provides that “Senators and
Representatives . . . shall in all Cases, except Treason, Felony and Breach of the Peace, be
privileged from Arrest during their Attendance at the Session of their respective Houses, and in
going to and returning from the same; and for any Speech or Debate in either House, they shall
not be questioned in any other Place.” U.S. Const. art. I, § 6, cl. 1. And some Founding-Era
state constitutions, like those of Virginia and Delaware, unequivocally protected their Governor
from certain penal sanctions, at least until “he [was] out of office.” Saikrishna Bangalore
Prakash, Prosecuting and Punishing Our Presidents, 100 Tex. L. Rev. 55, 69 (2021) (quoting
Va. Const. of 1776, art. XVI); accord id. at 69–70 (quoting Del. Const. of 1776, art. XXIII). The
U.S. Constitution contains no equivalent protections for the President.
Nor is the Constitution silent on the question because its drafters and ratifiers assumed
the President would enjoy the immunity Defendant claims. To the contrary, America’s founding
generation envisioned a Chief Executive wholly different from the unaccountable, almost
omnipotent rulers of other nations at that time. In Federalist No. 69—titled “The Real Character
of the Executive”—Alexander Hamilton emphasized the “total dissimilitude between [the
President] and the king of Great Britain,” the latter being “sacred and inviolable” in that “there is
no constitutional tribunal to which he is amenable; no punishment to which he can be subjected.”
The Federalist Papers by Alexander Hamilton, James Madison and John Jay 348–49 (Garry
Page 7 of 48 Wills ed. 1982). 2 Hamilton’s contemporary commentators universally affirmed the crucial
distinction that the President would at some point be subject to criminal process. See Prakash,
100 Tex. L. Rev. at 71–75 (collecting commentary); Response, Brian C. Kalt, Criminal Immunity
and Schrödinger’s President: A Response to Prosecuting and Punishing Our Presidents, 100 Tex.
L. Rev. Online 79, 83–85 (2021) (acknowledging Founding-Era consensus that Presidents would
lack absolute criminal immunity, but noting that most commentary was ambiguous about
whether prosecution could occur during Presidency, or only after). That widely acknowledged
contrast between the President and a king is even more compelling for a former President. The
Constitution’s silence on former Presidents’ criminal immunity thus does not reflect an
understanding that such immunity existed.
Lacking an express constitutional provision, Defendant hangs his textual argument for
immunity on the Impeachment Judgment Clause, but it cannot bear the weight he places on it.
The Clause provides:
Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: 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. From this language, Defendant concludes “that the President may be
charged by indictment only in cases where the President has been impeached and convicted by
trial in the Senate.” Immunity Motion at 11. But Defendant is not President, and reading the
Clause to grant absolute criminal immunity to former Presidents would contravene its plain
meaning, original understanding, and common sense.
2 All subsequent citations to the Federalist Papers refer to this edition, and the Papers are also available online at https://avalon.law.yale.edu/subject_menus/fed.asp.
Page 8 of 48 The Clause has two parts. The first limits the penalties of impeachment to removal and
disqualification from office. That limit marked a deliberate departure from the prevailing British
tradition, in which an impeachment conviction “might result in a wide array of criminal
penalties, including fines, imprisonment, and even execution.” 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 U.S. Op. Off. Legal Counsel 110, 2000 WL 33711290, at *7
(2000) (“OLC Double Jeopardy Memo”) (citing 2 Joseph Story, Commentaries on the
Constitution of the United States 251–2 (1833; reprint 1994) (“Story’s Commentaries”); 2
Richard Wooddeson, A Systematical View of the Laws of England 611–14 (1792); Raoul Berger,
Impeachment: The Constitutional Problems 67 (1974)). The second part of the Clause provides,
however, that impeachment’s limits do not preclude “the Party convicted” from later criminal
prosecution in the courts—i.e., that “further punishment[] . . . would still be available but simply
not to the legislature.” Id. at *10.
Both parts of the Clause undercut Defendant’s interpretation of it. The first begins by
defining the Clause’s scope: “Judgment in Cases of Impeachment,” indicating that the Clause is
aimed primarily at identifying the permissible penalties associated with impeachment itself. The
Clause’s second part confirms that purview. Rather than stating that “the Party convicted shall
only then be liable” to criminal prosecution, the Clause states that “the Party convicted shall
nevertheless be liable.” U.S. Const. art. I, § 3, cl. 7 (emphasis added). At the Founding, as now,
“nevertheless” meant “notwithstanding that,” and “notwithstanding that” meant “[w]ithout
hindrance or obstruction from.” Neverthele’ss, Samuel Johnson, A Dictionary Of The English
Language (1978) (4th ed. 1773), available at https://perma.cc/ST8E-RCMB; id.,
Notwithsta’nding, available at https://perma.cc/A9ML-QK4Y. In the Impeachment Judgment
Page 9 of 48 Clause, the word “nevertheless” in the second part thus signifies that the first part—constraining
impeachment’s penalties—does not bear on whether the Party would also be subject to criminal
prosecution. See OLC Immunity Memo at *2 (citing Amenability of the President, Vice
President and other Civil Officers to Federal Criminal Prosecution while in Office (1973)
(“1973 OLC Memo”), available at https://perma.cc/DM28-LHT9). As discussed at greater
length below, the Clause’s manifest purpose—and originally understood effect—was therefore
“to permit criminal prosecution in spite of the prior adjudication by the Senate, i.e., to forestall a
double jeopardy argument.” Id. (citation omitted); see infra Section V.B. That is quite different
from establishing impeachment and conviction as a prerequisite to a former President’s criminal
prosecution.
The historical sources that Defendant cites do not move the needle. First, he quotes
Alexander Hamilton’s twin statements in The Federalist that 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,” Federalist No. 69 at 348, and that the President
would be “at all times liable to impeachment, trial, dismission from office, incapacity to serve in
any other, and to forfeiture of life and estate by subsequent prosecution in the common course of
law,” Federalist No. 77 at 392. Immunity Motion at 12. But those statements merely echo the
Clause’s clarification that prosecution may follow impeachment; they do not say that those
events must happen in that order. Second, Defendant cites Founding Father James Wilson’s
remark during the ratification debates that the President “is amenable to [the laws] in his private
character as a citizen, and in his public character by impeachment.” J. Elliot, Debates on The
Federal Constitution 480 (2d ed. 1863). But Wilson was describing a President in office, see id.,
Page 10 of 48 and that description is entirely consistent with a former President—having returned to life “as a
citizen”—being subject to criminal prosecution. There is no evidence that any of the
Constitution’s drafters or ratifiers intended or understood former Presidents to be criminally
immune unless they had been impeached and convicted, much less a widespread consensus that
the Impeachment Judgment Clause would have that effect.
In addition to lacking textual or historical support, Defendant’s interpretation of the
Clause collapses under the application of common sense. For one, his reasoning is based on the
logical fallacy of “denying the antecedent.” See, e.g., New LifeCare Hosps. of N.C. LLC v. Azar,
466 F. Supp. 3d 124, 136 n.7 (D.D.C. 2020). From the statement “if the animal is a cat, it can be
a pet,” it does not follow that “if the animal is not a cat, it cannot be a pet.” Yet Defendant
argues that because a President who is impeached and convicted may be subject to criminal
prosecution, “a President who is not convicted may not be subject to criminal prosecution.”
Immunity Motion at 11. Even assuming that negative implication finds some traction when
applied to sitting Presidents, see, e.g., Trump v. Vance, 140 S. Ct. 2412, 2444–45 (2020) (Alito,
J., dissenting) (discussing that implication); but see OLC Immunity Memo at *2–3 (restating the
1973 OLC Memo’s rejection of the implication); see also infra Section V.B (discussing the
implication for double jeopardy purposes), the logic certainly does not hold for former
Presidents. That is because there is another way, besides impeachment and conviction, for a
President to be removed from office and thus subjected to “the ordinary course of law,”
Federalist No. 69 at 348: As in Defendant’s case, he may be voted out. The President “shall
hold his Office during the Term of four Years.” U.S. Const. art. II, § 1, cl. 1. Without
reelection, the expiration of that term ends a Presidency as surely as impeachment and
conviction. See United States v. Burr, 25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit
Page 11 of 48 Justice) (“[T]he president is elected from the mass of the people, and, on the expiration of the
time for which he is elected, returns to the mass of the people again.”). Nothing in the
Impeachment Judgment Clause prevents criminal prosecution thereafter.
Defendant’s reading of the Impeachment Judgment Clause also proves too much. If the
Clause required impeachment and conviction to precede criminal prosecution, then that
requirement would apply not only to the President, but also to the “Vice President and all civil
Officers of the United States”—who may likewise be impeached. U.S. Const. art. II, § 4. “The
constitutional practice since the Founding, however, has been to prosecute and even imprison
civil officers other than the President . . . prior to their impeachment.” OLC Immunity Memo at
*2 (citing 1973 OLC Memo at 4–7 (collecting sources)). For instance, then-Vice President
Aaron Burr was indicted without being impeached, see 1973 SG Memo at 12, and the same fate
might have befallen Vice President Spiro Agnew had he not resigned and entered a nolo
contendere plea, see United States v. Agnew, 428 F. Supp. 1293, 1293 (D. Md. 1977). Not only
would Defendant’s interpretation contradict that long-settled practice, it would also introduce
significant “complications into criminal proceedings” for all current and former federal officials,
including “threshold constitutional questions” of “whether the suspect is or was an officer of the
United States,” and “whether the offense is one for which he could be impeached.” OLC
Immunity Memo at *3 (citing 1973 OLC Memo at 7). The clash with historical practice and
difficulties in application that would flow from Defendant’s interpretation further confirm that it
cannot be the correct reading of the Clause.
Finally, Defendant’s interpretation of the Impeachment Judgment Clause would produce
implausibly perverse results. The Constitution permits impeachment and conviction for a limited
category of offenses: “Treason, Bribery, or other high Crimes and Misdemeanors.” U.S. Const.
Page 12 of 48 art. II, § 4. Under Defendant’s reading, if a President commits a crime that does not fall within
that limited category, and so could not be impeached and convicted, the President could never be
prosecuted for that crime. Alternatively, if Congress does not have the opportunity to impeach
or convict a sitting President—perhaps because the crime occurred near the end of their term, or
is covered up until after the President has left office—the former President similarly could not be
prosecuted. Defendant seems to suggest that this scenario, in which the former President would
be utterly unaccountable for their crimes, is simply the price we pay for the separation of powers.
See Reply in Support of Immunity Motion, ECF No. 122, at 6 (quoting Morrison v. Olson, 487
U.S. 654, 710 (1988) (Scalia, J., dissenting) (“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.”)). 3 That
cannot be the Clause’s meaning. The constitutional limits on impeachment’s penalties do not
license a President’s criminal impunity.
In sum, nothing in the Constitution’s text supplies the immunity that Defendant claims.
To be sure, “a specific textual basis has not been considered a prerequisite to the recognition of
immunity,” and so the inquiry is not confined to the express terms of our founding charter.
Fitzgerald, 457 U.S. at 750 n.31. But the lack of supporting constitutional text does mean that a
former President’s federal criminal immunity, if it exists, must arise entirely from “concerns of
public policy, especially as illuminated by our history and the structure of our government.” Id.
at 747–48. Defendant’s resort to those principles fares no better.
3 Even assuming that former as well as sitting Presidents may be impeached, this hypothetical would still produce problematic results. Congress could enable a former President’s criminal prosecution by impeaching them after they have left office. But it would raise serious separation of powers concerns to restrain the core executive act of prosecuting a private citizen—as a former President would then be—until Congress chose to do so. See infra Section III.B.2.
Page 13 of 48 B. Structure
The Supreme Court has cautioned against forms of Presidential liability that “rise to the
level of constitutionally forbidden impairment of the Executive’s ability to perform its
constitutionally mandated functions.” Clinton v. Jones, 520 U.S. 681, 702 (1997). But the
prospect of federal criminal liability for a former President does not violate that structural
principle, either by imposing unacceptable risks of vexatious litigation or by otherwise chilling
the Executive’s decision-making process. Indeed, it is likely that a President who knows that
their actions may one day be held to criminal account will be motivated to take greater care that
the laws are faithfully executed. More fundamentally, federal criminal liability is essential to the
public’s interest in our “historic commitment to the rule of law . . . nowhere more profoundly
manifest than in our view that ‘the twofold aim of criminal justice is that guilt shall not escape or
innocence suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger v. United States, 295 U.S. 78, 88
(1935)) (formatting modified). The Presidency’s unique responsibilities do not exempt its
former occupants from that commitment.
In Fitzgerald, the Supreme Court explained the structural analysis for Presidential
immunity. In that case, civil plaintiff A. Ernest Fitzgerald claimed that President Richard Nixon
had been involved in unlawfully firing him from his government job and sought money damages
against the former President. 457 U.S. at 733–41. The five-Justice majority noted it was “settled
law that the separation-of-powers doctrine does not bar every exercise of jurisdiction over the
President of the United States.” Id. at 753–54 (citations omitted). But it instructed that “a court,
before exercising jurisdiction, must balance the constitutional weight of the interest to be served
against the dangers of intrusion on the authority and functions of the Executive Branch.” Id. at
754 (citations omitted). “When judicial action is needed to serve broad public interests—as
when the Court acts, not in derogation of the separation of powers, but to maintain their proper Page 14 of 48 balance, or to vindicate the public interest in an ongoing criminal prosecution—the exercise of
jurisdiction has been held warranted.” Id. (first citing Youngstown Sheet & Tube Co. v. Sawyer,
343 U.S. 579 (1952), then citing Nixon, 418 U.S. 731). Ultimately, the Court found that a
“merely private suit for damages based on a President’s official acts” did not serve those
interests, and held that a former President could remain immune from such suits. Id. For a
federal criminal prosecution, however, the analysis comes out the other way.
1. Burdens on the Presidency At the outset, it bears noting that it is far less intrusive on the functions of the Executive
Branch to prosecute a former President than a sitting one. The Supreme Court has accepted at
least “the initial premise” that the President “occupies a unique office with powers and
responsibilities so vast and important that the public interest demands that he devote his
undivided time and attention to his public duties.” Clinton, 520 U.S. at 697–98. And the Office
of Legal Counsel has identified three burdens of criminal prosecution that could impede the
performance of that constitutional role:
(a) the actual imposition of a criminal sentence of incarceration, which would make it physically impossible for the President to carry out his duties; (b) the public stigma and opprobrium occasioned by the initiation of criminal proceedings, which could compromise the President’s ability to fulfill his constitutionally contemplated leadership role with respect to foreign and domestic affairs; and (c) the mental and physical burdens of assisting in the preparation of a defense for the various stages of the criminal proceedings, which might severely hamper the President’s performance of his official duties.
OLC Immunity Memo at *19. But none of those burdens would result from the criminal
prosecution of a former President, who is no longer performing official duties. Accordingly, the
separation-of-powers concerns are significantly diminished in this context.
Fitzgerald nonetheless suggested that the prospect of post-Presidency civil liability might
“distract a President from his public duties, to the detriment of not only the President and his
Page 15 of 48 office but also the Nation that the Presidency was designed to serve.” 457 U.S. at 753. The
Supreme Court highlighted two concerns: (1) the public interest in providing the President “the
maximum ability to deal fearlessly and impartially with the duties of his office,” and (2) the fact
that given the “visibility of his office and the effect of his actions on countless people, the
President would be an easily identifiable target for suits for civil damages.” Id. at 752–53
(quotation omitted). Defendant correspondingly focuses his arguments for immunity on (1) “the
chilling effect personal liability would have on the President’s decision-making,” and (2) the
“potential criminal prosecutions” former Presidents could face from “local, state, or subsequent
federal officials.” Immunity Motion at 9–10. He contends that “[c]ognizance 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. at 10 (quoting Fitzgerald, 457 U.S. at 753).
Those concerns do not carry the same weight in the context of a former President’s
federal criminal prosecution. First, the Supreme Court has largely rejected similar claims of a
“chilling effect” from the possibility of future criminal proceedings. During the Watergate
prosecution, President Nixon argued that if recordings of his conversations were subject to
criminal subpoena, the Presidential decision-making process would be compromised because his
staff would be less candid. Nixon, 418 U.S. at 705–06. The Court disagreed, stating that it
“cannot conclude that advisers will be moved to temper the candor of their remarks by the
infrequent occasions of disclosure because of the possibility that such conversations will be
called for in the context of a criminal prosecution.” Id. at 712. The Court quoted Justice
Cardozo’s unanimous opinion finding that a jury’s decision-making process would not be
meaningfully chilled if jurors’ conduct were later subject to criminal prosecution:
Page 16 of 48 A juror of integrity and reasonable firmness will not fear to speak his mind if the confidences of debate are barred to the ears of mere impertinence of malice. He will not expect to be shielded against the disclosure of his conduct in the event that there is evidence reflecting upon his honor. The chance that now and then there may be found some timid soul who will take counsel of his fears and give way to their repressive power is too remote and shadowy to shape the course of justice.
Id. n.20 (quoting Clark v. United States, 289 U.S. 1, 16 (1933)).
The same reasoning applies here. There is no doubt that “a President must concern
himself with matters likely to arouse the most intense feelings.” Fitzgerald, 457 U.S. at 752
(internal quotation marks omitted). But “[c]riminal conduct is not part of the necessary functions
performed by public officials.” United States v. Isaacs, 493 F.2d 1124, 1144 (7th Cir. 1974). By
definition, the President’s duty to “take Care that the Laws be faithfully executed” does not grant
special latitude to violate them. U.S. Const., art. II, § 3. That is especially true when the
violations require criminal intent, as is the case here, see Opp’n to Immunity Motion, ECF No.
109, at 31–32 (reviewing mens rea requirements for the Indictment’s four counts); cf. Imbler v.
Pachtman, 424 U.S. 409, 429 (1976) (noting that even public officials “cloaked with absolute
civil immunity . . . could be punished criminally” for their “willful acts”). Like his fellow
citizens serving on juries, then, a President “of integrity and reasonable firmness” will not fear to
carry out his lawful decision-making duties—even on hot-button political issues—and “will not
expect to be shielded against the disclosure of his conduct in the event that there is evidence
reflecting upon his honor.” Clark, 289 U.S. at 16. The rationale for immunizing a President’s
controversial decisions from civil liability does not extend to sheltering his criminality.
Indeed, the possibility of future criminal liability might encourage the kind of sober
reflection that would reinforce rather than defeat important constitutional values. If the specter
of subsequent prosecution encourages a sitting President to reconsider before deciding to act
with criminal intent, that is a benefit, not a defect. “Where an official could be expected to know
Page 17 of 48 that certain conduct would violate statutory or constitutional rights, he should be made to
hesitate.” Harlow v. Fitzgerald, 457 U.S. 800, 819 (1982). Consequently, to the extent that
there are any cognizable “chilling effects” on Presidential decision-making from the prospect of
criminal liability, they raise far lesser concerns than those discussed in the civil context of
Fitzgerald. Every President will face difficult decisions; whether to intentionally commit a
federal crime should not be one of them.
Second, the possibility of vexatious post-Presidency litigation is much reduced in the
criminal context. Defendant protests that denying him immunity would subject future Presidents
to “prosecution in countless federal, state, and local jurisdictions across the country,” Immunity
Motion at 10, but that is incorrect. To begin, Defendant is only charged with federal crimes in
this case, so any ruling here will be limited to that context and would not extend to state or local
prosecutions—which in any event might run afoul of the Supremacy Clause, see Vance, 140
S. Ct. at 2428 (“The Supremacy Clause prohibits state judges and prosecutors from interfering
with a President’s official duties. . . . Any effort to manipulate a President's policy decisions or to
‘retaliat[e]’ against a President for official acts . . . would thus be an unconstitutional attempt to
‘influence’ a superior sovereign ‘exempt’ from such obstacles.” (citations omitted)). And as
Defendant well knows, see infra Section V.A, a person cannot “be subject for the same offence
to be twice put in jeopardy of life or limb,” U.S. Const., amend. V. Consequently, denying
Defendant immunity here means only that a former President may face one federal prosecution,
in one jurisdiction, for each criminal offense allegedly committed while in office. That
consequence stands in contrast to the civil context, where “the effect of [the President’s] actions
on countless people” could result in untold numbers of private plaintiffs suing for damages based
on any number of Presidential acts. Fitzgerald, 457 U.S. at 753.
Page 18 of 48 Defendant also warns that if he is not given immunity here, criminal prosecutions will
“bedevil[] every future Presidential administration and usher[] in a new era of political
recrimination and division.” Immunity Motion at 11. But, as the Supreme Court noted when
faced with a similar argument in Clinton, that “predictive judgment finds little support in either
history or the relatively narrow compass of the issues raised in this particular case.” 520 U.S. at
702. As Defendant acknowledges, he is the only former President in United States history to
face criminal charges for acts committed while in office. See Immunity Motion at 15. “If the
past is any indicator, it seems unlikely that a deluge of such litigation will ever engulf the
Presidency.” Clinton, 520 U.S. at 702. Despite 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 prosecutions.
The robust procedural safeguards attendant to federal criminal prosecutions further
reduce the likelihood that former Presidents will be unjustly harassed. Prosecutors themselves
are constitutionally bound to not abuse their office, which is why “courts presume that they have
properly discharged their official duties.” United States v. Armstrong, 517 U.S. 456, 464 (1996)
(quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14–15 (1926)). And a federal
indictment is issued by a grand jury, which is similarly “prohibited from engaging in ‘arbitrary
fishing expeditions’ and initiating investigations ‘out of malice or an intent to harass.’” Vance,
140 S. Ct. at 2428 (quoting United States v. R. Enters., Inc., 498 U.S. 292, 299 (1991)). Even
after indictment, “in the event of such harassment, a [former] President would be entitled to the
protection of federal courts,” which “have the tools to deter and, where necessary, dismiss”
vexatious prosecutions. Id. For instance, if a prosecution is politically motivated, as Defendant
has argued in this case, that alone may warrant dismissal. See Motion to Dismiss Case for
Page 19 of 48 Selective and Vindictive Prosecution, ECF No. 116. And if a meritless prosecution somehow
reached trial, a former President would still have the opportunity to put the government’s proof
to the test. See U.S. Const., art. III, § 2, cl. 3.
In short, the concerns discussed in the civil context of Fitzgerald find no meaningful
purchase here. A former President accused of committing a crime while in office will be subject
to only one federal prosecution for that offense, which in turn will only result in conviction if the
grand jury finds probable cause and the prosecutor, judge, and all twelve petit jurors agree that
the charges are legitimate and have been proven beyond a reasonable doubt. Throughout that
process, a former President “may avail himself of the same protections available to every other
citizen.” Vance, 140 S. Ct. at 2430. In the rare case when a former President must do so, the
Constitution does not proffer the sledgehammer of absolute immunity where the scalpel of
procedural protections will suffice. See Burr, 25 F. Cas. at 34 (“The guard, furnished to this high
officer [the President], to protect him from being harassed by vexatious and unnecessary
subpoenas, is to be looked for in the conduct of a court after those subpoenas have issued; not in
any circumstance which is to [] precede their being issued.”). The possibility of future harassing
federal criminal prosecution will not cast so “serious” a shadow on the Presidency that its current
occupant cannot fulfill its duties. Clinton, 520 U.S. at 708.
2. Public interest On the other of side of the scale, the public interest in the prosecution of this case carries
grave weight. The Supreme Court has repeatedly underscored its judgment that “the public
interest in fair and accurate judicial proceedings is at its height in the criminal setting.” Vance,
140 S. Ct. at 2424. It has correspondingly refused to permit other concerns, including those
asserted by Presidents, to “prevail over the fundamental demands of due process of law in the
fair administration of criminal justice.” Nixon, 418 U.S. at 713; see United States v. Gillock, 445
Page 20 of 48 U.S. 360, 373 (1980) (concluding that “principles of comity” must yield “where important
federal interests are at stake, as in the enforcement of federal criminal statutes”). Despite their
other vehement disagreements in Fitzgerald, all nine Justices unanimously endorsed that
judgment with respect to former Presidents. Justice Powell’s majority opinion specifically
contrasted the “lesser public interest in actions for civil damages than . . . in criminal
prosecutions.” 457 at 754 n.37. Chief Justice Burger’s concurrence made the same distinction.
Id. at 759–60 (distinguishing immunity “limited to civil damages claims” from “a criminal
prosecution,” as in Burr or Nixon (emphasis in original)). And Justice White’s four-member
dissent stressed that no party had argued “that the President is immune from criminal prosecution
in the courts[,] . . . [n]or would such a claim be credible.” Id. at 780. Fitzgerald was thus
undivided in contemplating that the public interest could require a former President’s criminal
liability.
Defendant resists that consensus in Fitzgerald by pointing to a single passage in the
majority opinion where, in listing the “formal and informal checks” that could replace civil
liability as a deterrent for Presidential misconduct, the Court did not specifically list criminal
liability. Id. at 757. From that omission, Defendant infers that the Court intended to suggest that
criminal liability would not be available either. Immunity Motion at 13. But the Court’s
unanimous emphasis that it was not immunizing former Presidents from federal criminal liability
squarely refutes that inference. If anything, the omission underscores that civil and criminal
liability are so fundamentally distinct that they cannot be understood as substitutes for one
another. Accordingly, in the parallel context of cases “which have recognized an immunity from
civil suit for state officials,” the Supreme Court has explicitly “presumed the existence of federal
Page 21 of 48 criminal liability as a restraining factor on the conduct of state officials.” Gillock, 445 U.S.
at 372.
It is no surprise that the Supreme Court has long recognized the special public interest in
criminal law because of its distinctly communal character; that character is reflected in both the
Constitution itself and the legal tradition from which it arose. Unlike defendants in a civil
matter, for example, federal criminal defendants are constitutionally guaranteed “a speedy and
public trial” before a jury drawn from their community. U.S. Const., amend VI; id., art. III, § 2,
cl. 3. And the preeminent 18th-century legal commentator William Blackstone explained the
reason for the community’s special involvement in criminal cases: Whereas civil injuries “are an
infringement or privation of the civil rights which belong to individuals, considered merely as
individuals,” crimes “are a breach and violation of the public rights and duties due to the whole
community, considered as a community.” 4 William Blackstone, Commentaries *5. The
fundamentally public interest in a criminal prosecution explains why it “may proceed without the
consent of the victim and why it is brought in the name of the sovereign rather than the person
immediately injured by the wrong.” OLC Immunity Memo at *22. Put differently, the very
name of this case confirms the public’s particular stake in its adjudication: it is the United States
of America v. Donald J. Trump.
Congress has also affirmed the special public interests in enforcing the criminal law. In
the Sentencing Reform Act of 1984, it required every federal court to consider certain factors in
imposing sentence, and declared “the need for the sentence imposed”:
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
Page 22 of 48 (D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.
18 U.S.C. § 3553(a)(2); see Pub. L. 98-473, title II, § 212(a)(2) (1984). The public has an
undisputed interest in promoting respect for the law, deterring crime, protecting itself, and
rehabilitating offenders. All of those interests would be thwarted by granting former Presidents
absolute criminal immunity.
The fact that Congress has spoken by criminalizing the conduct with which Defendant is
charged also highlights the separation of powers principles that counsel in favor of the court
retaining jurisdiction over this case. “When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its lowest ebb.” Youngstown, 343 U.S. at
637 (Jackson, J., concurring). Congress could have penalized the conduct alleged in this case—
if it chose to penalize it at all—with mere civil liability, perhaps allowing for monetary damages
should a private plaintiff choose to bring suit. Instead, it expressed a far stronger condemnation
by subjecting that conduct to the severe consequences of the criminal law. “Whatever may be
the case with respect to civil liability” for former Presidents, then, “the judicially fashioned
doctrine of official immunity does not reach ‘so far as to immunize criminal conduct proscribed
by an Act of Congress.’” O’Shea v. Littleton, 414 U.S. 488, 503 (1974) (quoting Gravel v.
United States, 408 U.S. 606, 627 (1972)). Indeed, stretching the doctrine so far would also
“imped[e] . . . the primary constitutional duty of the Judicial Branch to do justice in criminal
prosecutions,” Nixon, 418 U.S. at 707, not to mention the current President’s duty to enforce the
criminal law, see U.S. Const., art. II, § 3. Holding a former President absolutely immune would
thus impinge on the functions of all three branches with respect to the criminal law: Congress’s
province to make it, the Executive’s prerogative to enforce it, and the Judiciary’s charge to
apply it.
Page 23 of 48 Most importantly, a former President’s exposure to federal criminal liability is essential
to fulfilling our constitutional promise of equal justice under the law. “The government of the
United States has been emphatically termed a government of laws, and not of men.” Marbury v.
Madison, 5 U.S. 137, 163 (1803). As the Supreme Court has stated, that principle must govern
citizens and officials alike:
No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives.
United States v. Lee, 106 U.S. 196, 220 (1882).
Perhaps no one understood the compelling public interest in the rule of law better than
our first former President, George Washington. His decision to voluntarily leave office after two
terms marked an extraordinary divergence from nearly every world leader who had preceded
him, ushering in the sacred American tradition of peacefully transitioning Presidential power—a
tradition that stood unbroken until January 6, 2021. In announcing that decision, however,
Washington counseled that the newfound American independence carried with it a responsibility.
“The very idea of the power and the right of the people to establish government presupposes the
duty of every individual to obey the established government.” Washington’s Farewell Address,
S. Doc. No. 106-21, at 13 (2d Sess. 2000), available at https://perma.cc/E5CZ-7NNP. He issued
a sober warning: “All obstructions to the execution of the laws,” including group arrangements
to “counteract” the “regular deliberation and action of the constituted authorities, are destructive
of this fundamental principle.” Id. at 14. In Washington’s view, such obstructions would prove
“fatal” to the Republic, as “cunning, ambitious, and unprincipled men will be enabled to subvert
Page 24 of 48 the power of the people and to usurp for themselves the reins of government, destroying
afterwards the very engines which have lifted them to unjust dominion.” Id.
In this case, Defendant is charged with attempting to usurp the reins of government as
Washington forewarned: The Government alleges that, with the help of political associates, he
“spread lies that there had been outcome-determinative fraud in the election and that he had
actually won,” and “pursued unlawful means of discounting legitimate votes and subverting the
election results,” all because he “was determined to remain in power.” Indictment ¶¶ 2, 4. In
asserting absolute executive immunity, Defendant asks not for an opportunity to disprove those
allegations, but for a categorical exemption from criminal liability because, in his view, “the
indictment is based solely on President Trump’s official acts.” Immunity Motion at 27–28. That
obstruction to the execution of the laws would betray the public interest. “If one man can be
allowed to determine for himself what is law, every man can. That means first chaos, then
tyranny.” United States v. United Mine Workers of Am., 330 U.S. 258, 312 (1947) (Frankfurter,
J., concurring in the judgment).
For all these reasons, the constitutional consequences of federal criminal liability differ
sharply from those of the civil liability at issue in Fitzgerald. Federal criminal liability will not
impermissibly chill the decision-making of a dutiful Chief Executive or subject them to endless
post-Presidency litigation. It will, however, uphold the vital constitutional values that Fitzgerald
identified as warranting the exercise of jurisdiction: maintaining the separation of powers and
vindicating “the public interest in an ongoing criminal prosecution.” 457 U.S. at 753–54.
Exempting former Presidents from the ordinary operation of the criminal justice system, on the
other hand, would undermine the foundation of the rule of law that our first former President
described: “Respect for its authority, compliance with its laws, [and] acquiescence in its
Page 25 of 48 measures”—“duties enjoined by the fundamental maxims of true liberty.” Washington’s
Farewell Address at 13. Consequently, the constitutional structure of our government does not
require absolute federal criminal immunity for former Presidents.
C. History
Nothing in American history justifies the absolute immunity Defendant seeks. As
discussed above, supra Section III.A, there is no evidence that the Founders understood the
Constitution to grant it, and since that time the Supreme Court “has never suggested that the
policy considerations which compel civil immunity for certain governmental officials also place
them beyond the reach of the criminal law.” Imbler, 424 U.S. at 429. Moreover, the notion that
former Presidents cannot face federal criminal charges for acts they took in office is refuted by
the “presuppositions of our political history.” Fitzgerald, 457 U.S. at 745 (quoting Tenney v.
Brandhove, 341 U.S. 367, 376 (1951)).
Start with the Executive Branch itself. “In the performance of assigned constitutional
duties each branch of the Government must initially interpret the Constitution, and the
interpretation of its powers by any branch is due great respect from the others.” Nixon, 418 U.S.
at 703. The Executive’s legal representatives—the Solicitor General and Office of Legal
Counsel—have 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.” OLC Immunity Memo at *12 (citing 1973 OLC Memo and 1973 SG Memo).
Naturally, the Special Counsel’s decision to bring this case also reflects that judgment,
distinguishing the Department of Justice’s position that former Presidents retain civil immunity.
See Brief for the United States as Amicus Curiae at 3 n.1 (filed Mar. 2, 2023), Blassingame v.
Trump, Nos. 22-5069, 22-7030, 22-7031 (D.C. Cir.). Even on its own, the Executive’s
Page 26 of 48 longstanding and unwavering position on this issue weighs against this court unilaterally
blocking a considered prosecution by conferring absolute immunity. 4
Historical practice also indicates that a President’s actions may later be criminally
prosecuted. In the aftermath of Watergate, for example, President Ford granted former President
Nixon “full, free, and absolute pardon . . . for all offenses against the United States which he,
Richard Nixon, has committed or may have committed or taken part in during” while in office.
Gerald Ford, Presidential Statement at 7–8 (Sept. 8, 1974), available at https://perma.cc/2GNZ-
QQ3D. In so doing, President Ford specifically noted the “serious allegations” that, without a
pardon, would “hang like a sword over our former President’s head” until he could “obtain a fair
trial by jury.” Id. at 3; see id. at 4–5 (expressing concern about Nixon’s rights to a presumption
of innocence and a speedy trial). And former President Nixon formally accepted that “full and
absolute pardon for any charges which might be brought against me for actions taken during the
time I was President of the United States,” calling the pardon a “compassionate act.” Richard
Nixon, Statement by Former President Richard Nixon at 1 (Sept. 8, 1974), available at
https://perma.cc/WV43-6E69. Both Ford’s pardon and Nixon’s acceptance arose from the desire
to prevent the former President’s potential criminal prosecution, and both specifically refer to
that possibility—without which the pardon would have been largely unnecessary. Defendant’s
view of his own immunity thus stands at odds with that of his predecessors in the Oval Office.
4 Congress, the other political branch, has not spoken directly to this issue. But it has not exempted actions taken during the Presidency from the criminal law, and “[u]nder the authority of Art. II, § 2,” it “has vested in the Attorney General the power to conduct the criminal litigation of the United States Government” and “to appoint subordinate officers to assist him,” which he has done “in th[is] particular matter[]” by appointing “a Special Prosecutor.” Nixon, 418 U.S. at 694. The Government also notes the statements of individual members of Congress—including some who voted to acquit Defendant during his impeachment trial— anticipating that Defendant could later be criminally prosecuted for the conduct at issue. See Opp’n to Immunity Motion at 14–15.
Page 27 of 48 Granting the immunity Defendant seeks would also break with longstanding legal
precedent that all government officials—even those immune from civil claims—may be held to
criminal account. In Fitzgerald, for instance, the Supreme Court analogized former President
Nixon’s civil immunity to the similar protections provided to judges and prosecutors. 457 U.S.
at 745–48. Unlike most government officials, who only receive “qualified” civil immunity,
prosecutors and judges have absolute civil immunity due to “the especially sensitive duties” of
their office and the public interest in their “liberty to exercise their functions with independence
and without fear of consequences.” Id. at 745–46 (quotation omitted); see, e.g., Imbler, 424 U.S.
at 431 (state prosecutors possess absolute civil immunity for prosecutions); Stump v. Sparkman,
435 U.S. 349, 359–60 (1978) (state judges possess absolute civil immunity for judicial acts). But
notwithstanding their absolute civil immunity, prosecutors and judges are “subject to criminal
prosecutions as are other citizens.” Dennis v. Sparks, 449 U.S. 24, 31 (1980); see Imbler, 424
U.S. at 429. Thus, while in Fitzgerald the “careful analogy to the common law absolute
immunity of judges and prosecutors” demonstrated history’s support for the former President’s
civil immunity, Vance, 140 S. Ct. at 2426, here that same history compels the denial of a former
President’s criminal immunity.
Against the weight of that history, Defendant argues in essence that because no other
former Presidents have been criminally prosecuted, it would be unconstitutional to start now.
Immunity Motion at 15–16. But while a former President’s prosecution is unprecedented, so too
are the allegations that a President committed the crimes with which Defendant is charged. See
infra Section VI.B. The Supreme Court has never immunized Presidents—much less former
Presidents—from judicial process merely because it was the first time that process had been
Page 28 of 48 necessary. See, e.g., Vance, 140 S. Ct. at 2424–25; Clinton, 520 U.S. at 692; Nixon, 418 U.S. at
703; Burr, 25 F. Cas. at 32. The court will not do so here.
In any event, Defendant’s reasoning turns the relevant historical analysis on its head. In
Clinton, the President likewise argued that the relative dearth of cases in which “sitting
Presidents ha[d] been defendants in civil litigation involving their actions prior to taking office”
meant that the Constitution afforded him temporary immunity for such claims. 520 U.S. at 692;
see Brief for the Petitioner, 1996 WL 448096, at *17–18, Clinton v. Jones, No. 95-1853 (U.S.).
The Court found instead that the dearth of similar cases meant that there was no “basis of
precedent” for the immunity that President Clinton sought—and in fact showed that there was
little risk of such litigation impeding the Presidency going forward. Clinton, 520 U.S. at 692,
702. In other words, a defendant cannot claim that history supports their immunity by pointing
to the fact that their immunity has never been asserted. Here, as in Clinton, that absence of
precedent negates rather than validates Defendant’s argument that history establishes his
immunity from criminal prosecution.
* * *
For these reasons, the court cannot conclude that our Constitution cloaks former
Presidents with absolute immunity for any federal crimes they committed while in office. Our
nation’s “historic commitment to the rule of law” is “nowhere more profoundly manifest than in
our view that ‘the twofold aim of criminal justice is that guilt shall not escape or innocence
suffer.’” Nixon, 418 U.S. at 708–09 (quoting Berger, 295 U.S. at 88) (formatting modified).
Nothing in the Constitution’s text or allocation of government powers requires exempting former
Presidents from that solemn process. And neither the People who adopted the Constitution nor
those who have safeguarded it across generations have ever understood it to do so. Defendant’s
Page 29 of 48 four-year service as Commander in Chief did not bestow on him the divine right of kings to
evade the criminal accountability that governs his fellow citizens. “No man in this country,” not
even the former President, “is so high that he is above the law.” Lee, 106 U.S. at 220.
Consistent with its duty to not “decide questions of a constitutional nature unless
absolutely necessary to a decision,” Clinton, 520 U.S. at 690 & n.11 (quoting Burton v. United
States, 196 U.S. 283, 295 (1905)), the court emphasizes the limits of its holding here. It does not
decide whether former Presidents retain absolute criminal immunity from non-federal
prosecutions, or whether sitting Presidents are entitled to greater immunity than former ones.
Similarly, the court expresses no opinion on the additional constitutional questions attendant to
Defendant’s assertion that former Presidents retain absolute criminal immunity for acts “within
the outer perimeter of the President’s official” responsibility. Immunity Motion at 21
(formatting modified). Even if the court were to accept that assertion, it could not grant
Defendant immunity here without resolving several separate and disputed constitutional
questions of first impression, including: whether the President’s duty to “take Care that the Laws
be faithfully executed” includes within its “outer perimeter” at least five different forms of
indicted conduct; 5 whether inquiring into the President’s purpose for undertaking each form of
that allegedly criminal conduct is constitutionally permissible in an immunity analysis, and
whether any Presidential conduct “intertwined” with otherwise constitutionally immune actions
5 As another court in this district observed in a decision regarding Defendant’s civil immunity, “[t]his is not an easy issue. It is one that implicates fundamental norms of separation of powers and calls on the court to assess the limits of a President’s functions. And, historical examples to serve as guideposts are few.” Thompson v. Trump, 590 F. Supp. 3d 46, 74 (D.D.C. 2022); see id. at 81–84 (performing that constitutional analysis). The D.C. Circuit recently affirmed that district court’s decision with an extensive analysis of just one form of conduct—“speech on matters of public concern.” Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-7031, slip op. at 23–42 (D.C. Cir. Dec. 1, 2023).
Page 30 of 48 also receives criminal immunity. See id. at 21–45. Because it concludes that former Presidents
do not possess absolute federal criminal immunity for any acts committed while in office,
however, the court need not reach those additional constitutional issues, and it expresses no
opinion on them.
IV. FIRST AMENDMENT
In his Constitutional Motion, Defendant first argues that the Indictment should be
dismissed because it criminalizes his speech and therefore violates the First Amendment. But it
is well established that the First Amendment does not protect speech that is used as an instrument
of a crime, and consequently the Indictment—which charges Defendant with, among other
things, making statements in furtherance of a crime—does not violate Defendant’s First
Amendment rights.
A. The First Amendment and criminal prosecutions
The First Amendment provides, in relevant part, that “Congress shall make no law . . .
abridging the freedom of speech.” U.S. Const. amend. I. Generally, “the First Amendment
means that government has no power to restrict expression because of its message, its ideas, its
subject matter, or its content.” United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting
Ashcroft v. Am. Civ. Liberties Union, 535 U.S. 564, 573 (2002)). In restricting the government’s
power to control speech, the First Amendment “embodies ‘our profound national commitment to
the free exchange of ideas.’” Ashcroft, 535 U.S. at 573 (citation omitted).
The right to freedom of speech is “not absolute,” however. Id. It is fundamental First
Amendment jurisprudence that prohibiting and punishing speech “integral to criminal conduct”
does not “raise any Constitutional problem.” Stevens, 559 U.S. at 468–69 (citation omitted);
accord Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498–502 (1949). “Many long
established” criminal laws permissibly “criminalize speech . . . that is intended to induce or Page 31 of 48 commence illegal activities,” United States v. Williams, 553 U.S. 285, 298 (2008), such as fraud,
bribery, perjury, extortion, threats, incitement, solicitation, and blackmail, see, e.g., Stevens, 559
U.S. at 468–69 (fraud); Williams, 553 U.S. at 298 (incitement, solicitation); Citizens United v.
Fed. Election Comm’n, 558 U.S. 310, 356 (2010) (bribery); Rice v. Paladin Enters., Inc., 128
F.3d 233, 244 (4th Cir. 1997) (extortion, threats, blackmail, perjury). Prosecutions for
conspiring, directing, and aiding and abetting do not run afoul of the Constitution when those
offenses are “carried out through speech.” Nat’l Org. for Women v. Operation Rescue, 37 F.3d
646, 655–56 (D.C. Cir. 1994) (directing and aiding and abetting); see Williams, 553 U.S. at 298
(conspiring).
B. The Indictment does not violate the First Amendment
The Indictment alleges that Defendant used specific statements as instruments of the
criminal offenses with which he is charged: conspiring to fraudulently obstruct the federal
function for collecting, counting, and certifying the results of the Presidential election, in
violation of 18 U.S.C. § 371 (Count I); corruptly obstructing and conspiring to obstruct
Congress’s certification of the election results, in violation of 18 U.S.C. §§ 1512(c)(2) and (k)
(Counts II and III); and conspiring to deprive citizens of their constitutional right to have their
votes counted, in violation of 18 U.S.C § 241 (Count IV). See Indictment ¶¶ 5–130.
That Defendant’s alleged criminal conduct involved speech does not render the
Indictment unconstitutional. The Indictment notes that “Defendant had a right, like every
American, to speak publicly about the election and even to claim, falsely, that there had been
outcome-determinative fraud during the election and that he had won.” Id. ¶ 3. And it
enumerates Defendant’s specific statements only to support the allegations that Defendant joined
conspiracies and attempted to obstruct the election certification, such as the allegations that
Defendant knowingly made false claims about the election results, id. ¶¶ 11–12, and deceived Page 32 of 48 state officials to subvert the election results, id. ¶ 13–52. See, e.g., id. ¶¶ 12, 19, 22, 31–35, 37,
41, 46, 50, 52 (referencing Defendant’s statements). The Indictment therefore properly alleges
Defendant’s statements were made in furtherance of a criminal scheme.
Defendant argues that the Indictment violates the First Amendment for three primary
reasons: (1) the government may not prohibit Defendant’s core political speech on matters of
public concern, Constitutional Motion at 4–11; (2) “First Amendment protection . . . extends to
statements advocating the government to act,” id. at 12–14 (formatting modified); and
(3) Defendant reasonably believed that the 2020 Presidential Election was stolen, id. at 15–17.
1. Core political speech on matters of public concern Defendant first claims that his statements disputing the outcome of the 2020 election is
“core political speech” that addresses a “matter[] of public concern.” Id. at 8–10. Even
assuming that is true, “core political speech” addressing “matters of public concern” is not
“immunized from prosecution” if it is used to further criminal activity. United States v. Rahman,
189 F.3d 88, 117 (2d Cir. 1999); see Stevens, 559 U.S. at 468–69. That is the case even though
Defendant was the President at the time. See Blassingame v. Trump, Nos. 22-5069, 22-7030, 22-
7031, slip op. at 50 (D.C. Cir. Dec. 1, 2023) (Defendant is not entitled to immunity when he
“engages in speech” that “removes him[] from the First Amendment’s protections.”). As the
D.C. Circuit has recognized, “an immunity for all presidential speech on matters of public
concern …. is ‘unsupported by precedent.’” Id. at 27 (quoting Clinton, 520 U.S. at 695).
In support of his argument, Defendant first invokes various Justices’ opinions in United
States v. Alvarez, 567 U.S. 709 (2012). Constitutional Motion at 4–7. There was no majority
opinion in Alvarez; a majority of the Justices agreed only that the Stolen Valor Act, which
prohibits an individual from falsely representing that they have received “any decoration or
medal authorized by Congress for the Armed Forces of the United States,” violated the First
Page 33 of 48 Amendment. 567 U.S. at 716, 729–30 (plurality opinion) (Kennedy, J., joined by Roberts. C.J.,
Ginsburg, J., and Sotomayor, J.); id. at 730 (Breyer, J. concurring in the judgment, joined by
Kagan, J.). One theme common to both the plurality and concurring opinions, however, was the
concern that the Stolen Valor Act prohibited only false statements and only because of their
falsity. See id. at 717–22 (plurality opinion); id. at 732 (Breyer, J. concurring). Indeed, each
opinion reiterated that laws “implicat[ing] fraud or speech integral to criminal conduct” are
constitutional. Id. at 721 (plurality opinion); accord id. at 734–36 (Breyer, J., concurring in the
judgment); id. at 747 (Alito, J., dissenting). Because it confirmed that speech involved in the
commission of a crime was not protected by the First Amendment, Alvarez did not undermine
settled precedent allowing the prosecution of speech in furtherance of criminal activity.
Second, Defendant contends that “attempts to prohibit or criminalize claims on political
disputes” constitute viewpoint discrimination. Constitutional Motion at 9–10. But Defendant is
not being prosecuted for his “view” on a political dispute; he is being prosecuted for acts
constituting criminal conspiracy and obstruction of the electoral process. Supra Section I. And
any political motives Defendant may have had in doing so do not insulate his conduct from
prosecution. E.g., Rahman, 189 F.3d at 116–17 (mixed motives do not insulate speech from
prosecution); see Gov.’s Omnibus Opp’n to Def.’s Motions to Dismiss the Indictment on
Statutory and Constitutional Grounds, ECF No. 139 at 33 (Opp’n to Constitutional Motion)
(collecting other Circuit cases). The Indictment does not unconstitutionally discriminate against
Defendant based on viewpoint.
Third, Defendant argues that even if a higher level of scrutiny does not apply to the
Indictment, it nonetheless is invalid “under any level of scrutiny” because it is “tailored to violate
free-speech rights.” Constitutional Motion at 11. Here, however, there is no level of scrutiny
Page 34 of 48 that applies, because speech in furtherance of criminal conduct does not receive any First
Amendment protection. E.g., Stevens, 559 U.S. at 468–69. Moreover, Defendant cites no
support for his argument that the Indictment is “tailored to violate free-speech rights,” nor does
he explain how the Indictment is so tailored. See Constitutional Motion at 11 (emphasis added).
Finally, Defendant argues that the Indictment violates the First Amendment because “all
the charged conduct constitutes First Amendment protected speech.” Def.’s Reply in Support of
Motion to Dismiss Based on Constitutional Grounds, ECF No. 162 at 7–8 (“Constitutional
Reply”) (emphasis in original). He contends that to qualify as speech in furtherance of criminal
conduct, “the speech in question must ‘be integral to’ some criminal ‘conduct’ that is not itself a
form of First Amendment-protected speech or expression.” Id. (emphasis added). But again, the
Indictment does not need to list other kinds of criminal conduct in addition to speech to comply
with the First Amendment; the crimes Defendant is charged with violating may be carried out
through speech alone. See Nat’l Org. for Women, 37 F.3d at 656; supra Section IV.A.
2. Statements advocating government action Defendant next claims the First Amendment protects “statements advocating the
government to act.” Constitutional Motion at 12–14 (formatting modified). He first contends
the Petition Clause of the First Amendment provides an absolute right to make statements
encouraging the government to act in a public forum, citing McDonald v. Smith, 472 U.S. 479
(1985). Constitutional Motion at 12–13. The Petition Clause provides that “Congress shall
make no law . . . abridging . . . the right of the people . . . to petition the Government for a
redress of grievances.” U.S. Const. amend. I. The Clause protects individuals’ ability to
“‘communicate their will’ through direct petitions to the legislature and government officials.”
McDonald, 472 U.S. at 482 (quoting 1 Annals of Congress 738 (1789) (James Madison)). In
McDonald, however, the Supreme Court concluded that the Petition Clause did not immunize a
Page 35 of 48 person from a libel suit based on letters the individual had sent to the President. Id. at 480–81;
see also Opp’n to Constitutional Motion at 34. The Court explained that the Petition Clause does
not have “special First Amendment status,” so “there is no sound basis for granting greater
constitutional protection” under the Petition Clause “than other First Amendment expressions.”
McDonald, 472 U.S. at 484–85. Defendant’s reliance on the Clause and its interpretation in
McDonald is therefore unavailing, as the Petition Clause does not prohibit prosecuting
Defendant’s speech any more than the Speech Clause does. The Petition Clause does not
insulate speech from prosecution merely because that speech also petitions the government.
Defendant also invokes McDonnell v. United States, 579 U.S. 550 (2016), to argue that
allowing this prosecution would risk criminalizing statements once thought to be false that
turned out to be true, such as statements made early in the COVID-19 pandemic that masks do
not stop the transmission of the virus. Constitutional Motion at 13–14. Not so. First,
McDonnell did not involve the First Amendment but rather the proper interpretation of “official
act” under the federal bribery statute, 18 U.S.C. § 201(b)(2). McDonell, 579 U.S. at 566; see
Opp’n to Constitutional Motion at 34 n.14. And neither the Indictment nor the federal statutes
under which Defendant is charged involve an “official act.” Second, Defendant is not being
prosecuted simply for making false statements, see supra at 33–34, but rather for knowingly
making false statements in furtherance of a criminal conspiracy and obstructing the electoral
process. Consequently, there is no danger of a slippery slope in which inadvertent false
statements alone are alleged to be the basis for criminal prosecution.
In his Reply brief, Defendant also raises overbreadth, arguing that under the
Government’s interpretation, the underlying statutes charged in the Indictment are
unconstitutional because they “criminalize a wide range of perfectly ordinary acts of public
Page 36 of 48 speech and petitioning the government.” Constitutional Reply at 9–10. Assuming Defendant’s
overbreadth challenge was properly raised for the first time in his Reply brief, the statutes are not
overbroad under the Government’s view. As an initial matter, Defendant’s actions are not
entitled to First Amendment protection as “perfectly ordinary acts of public speech and
petitioning the government.” Supra Section IV.B.1–2; infra Section IV.B.3. Moreover,
Defendant fails to identify any protected acts or speech that the statutes might render
impermissible under the Government’s interpretation. See, e.g., United States v. Hansen, 599
U.S. 762, 769–70 (2023) (A litigant must “demonstrate[] that the statute ‘prohibits a substantial
amount of protected speech’ relative to its ‘plainly legitimate sweep’” to succeed in overbreadth
challenge (citation omitted)).
3. Defendant’s statements on the 2020 Presidential Election Finally, Defendant claims the First Amendment does not permit the government to
prosecute him for his reasonable belief that the 2020 Presidential Election was stolen.
Constitutional Motion at 15–17. He argues that the truth or falsity of his belief is not “easily
verifiable” and there is “abundant public evidence providing a reasonable basis” for his view. Id.
at 15–16. He contends that he is “entitled to mistrust the word of . . . establishment-based
government officials and draw [his] own inferences from the facts.” Id. at 17. At this stage,
however, the court must take the allegations in the Indictment as true, supra Section II, and the
Indictment alleges that Defendant made statements that he knew were false, e.g., Indictment
¶¶ 11–12; see also Opp’n to Constitutional Motion at 26–27. While Defendant challenges that
allegation in his Motion, and may do so at trial, his claim that his belief was reasonable does not
implicate the First Amendment. If the Government cannot prove beyond a reasonable doubt at
trial that Defendant knowingly made false statements, he will not be convicted; that would not
mean the Indictment violated the First Amendment.
Page 37 of 48 V. DOUBLE JEOPARDY
Defendant’s Constitutional Motion next posits that the prosecution violates double
jeopardy because Defendant was tried—and acquitted—in earlier impeachment proceedings
arising out of the same course of conduct. Constitutional Motion at 18–24. But neither
traditional double jeopardy principles nor the Impeachment Judgment Clause provide that a
prosecution following impeachment acquittal violates double jeopardy.
A. Double Jeopardy Clause
The Fifth Amendment provides that “[n]o person shall . . . be subject for the same offense
to be twice put in jeopardy of life or limb.” U.S. Const. amend. V. To “be twice put in jeopardy
of life or limb” means to face the possibility of “multiple criminal punishments for the same
offense.” Hudson v. United States, 522 U.S. 93, 99 (citation omitted) (emphasis in original). A
purportedly civil penalty only counts in the double jeopardy context if “the statutory scheme was
so punitive in either purpose or effect . . . as to ‘transform’” it into a criminal penalty. Id.
(citation omitted).
As long as separate prosecutions charge an individual with violating different laws, the
prosecutions are considered separate “offenses” under the Double Jeopardy Clause and the
second prosecution passes constitutional muster. Denezpi v. United States, 596 U.S. 591, 597–
98 (2022). When the same “act or transaction” violates two distinct provisions of the same
statute, there are distinct offenses only if “each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). In contexts involving
different sovereigns—such as the federal government and a state government—a person may be
tried for violating laws that “have identical elements and could not be separately prosecuted if
enacted by a single sovereign.” Denezpi, 596 U.S. at 597–98.
Page 38 of 48 The Indictment here does not violate double jeopardy principles. First, impeachment
threatens only “removal from Office, and disqualification to hold and enjoy any Office of honor,
Trust or Profit under the United States,” U.S. Const. art. I, § 3, cl. 7, neither of which is a
criminal penalty. See supra at 9. Nor does Defendant argue that they are civil penalties that
should be construed as criminal penalties. See Constitutional Motion at 23–24. Second, the
impeachment proceedings charged Defendant with “Incitement of Insurrection,” which is not
charged in the Indictment. See Opp’n to Constitutional Motion at 60–62 (citing H.R. Res. 24,
117th Cong. (Jan. 11, 2021)). Although there are few decisions interpreting the analogous
federal statute that prohibits inciting “any . . . insurrection against the authority of the United
States or the laws thereof,” 18 U.S.C. § 2383, it is well-established that “incitement” typically
means “advocacy . . . directed to inciting or producing imminent lawless action” that is “likely to
incite or produce such action,” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). None of the
statutes under which Defendant is charged require the Government to prove incitement. See 18
U.S.C. § 371; id. §§ 1512(c)(2), (k); id. § 241; accord Indictment ¶¶ 6, 126, 128, 130. The
impeachment proceedings and this prosecution therefore did not “twice put” Defendant “in
jeopardy of life or limb” for the “same offense.”
Defendant also contends his prosecution violates double jeopardy principles because the
distinct branches of government are part of one single sovereign. Constitutional Motion at 24.
But even assuming that is true, Defendant does not argue that impeachment carries a criminal
sanction or that the impeachment proceedings were based on the same offense as charged in the
Indictment. See id. at 23–24. Instead, he argues that different double jeopardy principles would
apply to prosecutions following impeachments, referencing only the Impeachment Judgment
Clause for support. Constitutional Reply at 18–20. But, as discussed below, the Impeachment
Page 39 of 48 Judgment Clause provides only that prosecutions following convictions at impeachment are
constitutionally permissible; it does not create special double jeopardy principles. See U.S.
Const. art. I, § 3, cl. 7; infra Section V.B. Consequently, the Indictment does not violate the
Double Jeopardy Clause.
B. Impeachment Judgment Clause
The Impeachment Judgment Clause provides that “Judgment in Cases of Impeachment
shall not extend further than to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States: 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. As explained above, the first part of the Clause limits the
remedies available in impeachment, and the second part provides that even if a person is
convicted in impeachment proceedings, they may still be subject to criminal prosecution. See
supra at 8–10. As the Office of Legal Counsel noted, the “second part makes clear that the
restriction on sanctions in the first part was not a prohibition on further punishments; rather,
those punishments would still be available but simply not to the legislature.” OLC Double
Jeopardy Memo at *10.
Defendant contends the Impeachment Judgment Clause contains a negative implication:
if a person is not convicted in impeachment proceedings, they may not be prosecuted.
Constitutional Motion at 18–23; Constitutional Reply at 10–11. In statutory interpretation, the
expressio unius canon, which provides that “expressing one item of an associated group or series
excludes another left unmentioned,” does not apply unless “circumstances support a sensible
inference that the term left out must have been meant to be excluded.” NLRB v. SW General,
Inc., 580 U.S. 288, 302 (2017) (citations omitted). Because Defendant’s reading is not supported
by the structure of the Constitution, the historical context of the impeachment clauses, or prior Page 40 of 48 constitutional precedents, expressio unius does not apply. Accord Thompson v. Trump, 590
F. Supp. 3d 46, 86–87 (D.D.C. 2022). The Impeachment Judgment Clause does not provide that
acquittal by the Senate during impeachment proceedings shields a President from criminal
prosecution after he leaves office.
1. Structure Structural considerations support reading the Impeachment Judgment Clause as the plain
language suggests. First, as the Government notes, impeachment and prosecution serve distinct
goals within the separation of powers. See Opp’n to Constitutional Motion at 52–53.
Impeachment “is designed to enable Congress to protect the nation against officers who have
demonstrated that they are unfit to carry out important public responsibilities,” whereas
prosecution is designed to “penalize individuals for their criminal misdeeds.” OLC Double
Jeopardy Memo at *13. Impeachment proceedings provide far fewer procedural safeguards than
do prosecutions, see id., and accordingly, Congress may not dispense criminal penalties in
impeachment proceedings, supra Section V.A. Impeachment is not a substitute for prosecution.
Second, the Senate may acquit in impeachment proceedings even when it finds that an
official committed the acts alleged. For example, the Senate may acquit because it believes the
acts committed do not amount to “high Crimes and Misdemeanors,” U.S. Const. art. II, § 4;
because the Senate believes it lacks authority to try the official; or for partisan reasons. OLC
Double Jeopardy Memo at *14–15. Indeed, the Framers anticipated that impeachments might
spark partisan division. See The Federalist No. 65, at 330–31 (Alexander Hamilton); Letter from
Edmund Pendleton to James Madison, Oct. 8, 1787, 10 The Documentary History of the
Ratification of the Constitution 1773 (1976); 10 The Papers of James Madison 223 (Rutland et
al. ed., 1977); accord OLC Double Jeopardy Memo at *15. Acquittal on impeachment does not
establish the defendant’s innocence.
Page 41 of 48 Defendant contends that impeachment serves to protect officials from political attacks by
their enemies, and allowing prosecution following impeachment acquittal would undermine that
protection. Constitutional Reply at 15–18. But politics are likely to play even larger a role in
impeachments than in prosecutions, given that impeachments are conducted by elected officials
politically accountable to their constituents, whereas prosecutions are conducted by appointed
officials, most of whom may not be removed without cause, see Free Enter. Fund v. Public Co.
Accounting Oversight Bd., 561 U.S. 477, 492–93 (2010) (explaining for-cause removal). And
former officials like Defendant, rather than current officials, are also less likely to be politically
attacked, because they no longer hold the power and authority of political office.
2. Historical context Defendant claims that his interpretation of the Impeachment Judgment Clause reflects the
original public meaning of the impeachment clauses. Constitutional Motion at 20–21;
Constitutional Reply at 12–15. Considerable historical research undermines that contention. See
OLC Double Jeopardy Memo at *7–12 (“We are unaware of any evidence suggesting that the
framers and ratifiers of the Constitution chose the phrase ‘the party convicted’ with a negative
implication in mind.”); accord Thompson, 590 F. Supp. 3d at 87. Most notably, the Founders
repeatedly acknowledged that impeachment acquittals would not bar subsequent prosecutions.
For example, James Wilson, who participated in the Constitutional Convention, observed that
officials who “may not be convicted on impeachment . . . may be tried by their country.” 2 The
Documentary History of the Ratification of the Constitution 492. Edward Pendleton, who was
President of the Virginia Ratifying Convention, similarly observed that “an Acquital would not
bar,” a “resort to the Courts of Justice,” Letter from Edmund Pendleton to James Madison, Oct.
8, 1787, 10 The Documentary History of the Ratification of the Constitution 1773, a conclusion
that James Madison called “extremely well founded,” 10 The Papers of James Madison 223.
Page 42 of 48 Justice Story too described that, following impeachment, “a second trial for the same offence
could be had, either after an acquittal, or a conviction in the court of impeachments.” 2 Story’s
Commentaries § 780.
Founding-era officials similarly acknowledged that an acquittal at impeachment
proceedings would not bar a subsequent prosecution. For example, during the first federal
impeachment trial, Representative Samuel Dana contrasted impeachment proceedings with
criminal trials, stating that impeachment had “no conne[ct]ion with punishment or crime, as,
whether a person tried under an impeachment be found guilty or acquitted, he is still liable to a
prosecution at common law.” 9 Annals of Congress 2475 (1798). None of the sources
Defendant cites refute that conclusion. See Constitutional Motion at 20–21.
3. Prior precedent Defendant’s additional arguments invoking past constitutional precedents are similarly
unavailing. He first cites Justice Alito’s dissent in Vance. Constitutional Motion at 19–20. In
Vance, the Supreme Court held that a sitting President is not immune from state criminal
subpoenas, nor does a heightened standard apply to such requests. 140 S. Ct. at 2431. In so
holding, the majority opinion reiterated that “no citizen, not even the President, is categorically
above the common duty to produce evidence when called upon in a criminal proceeding.” Id.
Justice Alito’s dissent, moreover, noted that under the Impeachment Judgement Clause,
“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.” Id. at 2444 (Alito, J., dissenting); see Constitutional Motion at 19. All Justice
Alito’s dissent observed is that, temporally, any prosecution must follow the judgment on
impeachment; no official shall be subject to simultaneous impeachment proceedings and
Page 43 of 48 criminal prosecution. The dissent does not support the view that if impeachment proceedings
end in acquittal, subsequent prosecution violates double jeopardy.
Defendant also cites Fitzgerald for the proposition that the threat of impeachment alone
is the proper remedy against a President for any “official misfeasance.” Constitutional Motion
at 22. But as already explained, Fitzgerald is meaningfully distinguishable; it addressed
immunity from civil suit, and all nine Justices took care to emphasize that their reasoning did not
extend to the criminal context. See supra Section III.B.1.
In sum, neither the Double Jeopardy Clause nor the Impeachment Judgment Clause
prevent Defendant, who while President was acquitted in impeachment proceedings for
incitement, from being prosecuted after leaving office for different offenses.
VI. DUE PROCESS
Finally, Defendant contends that the Indictment violates the Due Process Clause because
he lacked fair notice that his conduct was unlawful. Constitutional Motion at 25–31.
A. Due process principles
The Due Process Clause of the Fifth Amendment provides that “[n]o person shall . . . be
deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. To
comply with due process, a law must give “fair warning” of the prohibited conduct. United
States v. Lanier, 520 U.S. 259, 265 (1997) (citation omitted). A law fails to give fair warning if
the text of a statute is so unclear that it requires the Judicial and Executive Branches to “define
what conduct is sanctionable and what is not,” Sessions v. Dimaya, 138 S. Ct. 1204, 1212 (2018);
see Lanier, 520 U.S. at 266 (citation omitted), or a judge construes the statute in a manner that is
“clearly at variance with the statutory language,” Bouie v. City of Columbia, 378 U.S. 347, 356
(1964); see Rogers v. Tennessee, 532 U.S. 451, 457 (2001); see also Lanier, 520 U.S. at 266.
Page 44 of 48 For instance, in 2015, the Supreme Court concluded that the residual clause of the Armed
Career Criminal Act violated due process because it was so vague—and difficult to administer—
that defendants lacked notice of how it would be applied in any given case. Johnson v. United
States, 576 U.S. 591, 597 (2015). The Court explained that the residual clause required judges to
imagine an “ordinary case” involving the crime with which the defendant was charged, and
compare the defendant’s actions to that “ordinary case.” Id. at 597, 599. It further emphasized
that its “repeated attempts and repeated failures to craft a principled and objective standard out of
the residual clause confirm[ed] its hopeless indeterminacy,” id. at 598, noting that the clause had
caused “numerous splits among the lower federal courts,” id. at 601 (citation omitted).
A statute does not fail to give fair warning just “because it ‘does not mean the same thing
to all people, all the time, everywhere.’” United States v. Bronstein, 849 F.3d 1101, 1107 (D.C.
Cir. 2017) (citation omitted). “Since words, by their nature, are imprecise instruments,” laws
“may have gray areas at the margins” without violating due process. United States v. Barnes,
295 F.3d 1354, 1366 (D.C. Cir. 2002). Indeed, statutes are rarely found unconstitutional because
their text fails to give fair warning. See, e.g., Bronstein, 849 F.3d at 1107 (statute upheld);
Barnes, 259 F.3d at 1366 (same); Woodhull Freedom Found. v. United States, 72 F.4th 1286,
1303–05 (D.C. Cir. 2023) (same); Kincaid v. Gov’t of D.C., 854 F.3d 721, 728–30 (D.C. Cir.
2017) (same); Agnew v. Gov’t of D.C., 920 F.3d 49, 55–61 (D.C. Cir. 2019) (same).
Applying a novel judicial construction of a statute may also fail to give fair warning if it
“unexpectedly broadens” the statute’s reach and applies that expanded reach “retroactively.”
Bouie, 378 U.S. at 353–57; see Rogers, 532 U.S. at 457; Reed v. Goertz, 143 S. Ct. 955, 960–61
(2023). In Bouie, for example, defendants were convicted of violating a state law prohibiting
“entry upon the lands of another . . . after notice from the other . . . prohibiting such entry” after
Page 45 of 48 they remained on premises after being asked to leave, even though they did not re-enter the
premises. 378 U.S. at 355. The Supreme Court held that the state supreme court’s construction
of the statute failed to give the defendants fair notice because it was “clearly at variance with the
statutory language” and had “not the slightest support in prior [state] decisions.” Id. at 356.
B. The Indictment does not violate due process
Defendant had fair notice that his conduct might be unlawful. None of the criminal laws
he is accused of violating—18 U.S.C. § 371; id. § 1512(k); id. § 1512(c)(2); and id. § 241—
require the Executive or Judicial Branch to “guess” at the prohibited conduct, Lanier, 520 U.S. at
266. Nor does finding that the Indictment complies with due process require the court to create a
novel judicial construction of any statute.
Defendant notes that the “principle of fair notice has special force” in the First
Amendment Context. Constitutional Motion at 26–27. While that may be true, even “special
force” does not place Defendant’s alleged conduct “outside the plain language of the charged
statutes” as he alleges. See id. at 27. First, his argument does not contrast the allegations in the
Indictment with the plain language of the statutes, but instead attempts to recast the factual
allegations in the Indictment itself as no more than routine efforts to challenge an election. See
id. at 31 (claiming that “post-election challenges” like Defendant’s “had been performed in 1800,
1824, 1876, and 1960 . . . without any suggestion [it was] criminal”). But again, at this stage, the
court must take the allegations in the Indictment as true. Supra Section II, IV.B.3. The fact that
Defendant disputes the allegations in the Indictment do not render them unconstitutional.
Second, the meaning of statutory terms “need not be immediately obvious to an average person;
indeed, ‘even trained lawyers may find it necessary to consult legal dictionaries, treatises, and
judicial opinions before they may say with any certainty what some statutes may compel or
forbid.’” Agnew, 920 F.3d at 57 (citation omitted). And due process does not entitle Defendant Page 46 of 48 to advance warning that his precise conduct is unlawful, so long as the law plainly forbids it. See
Lanier, 520 U.S. at 271; cf. United States v. Int’l Mins. & Chem. Corp., 402 U.S. 558, 563
(1971) (“ignorance of the law is no defense”).
Defendant also claims he lacked fair notice because there is a “long history” of
government officials “publicly claiming that election results were tainted by fraud” or
questioning election results, yet he is “the first person to face criminal charges for such core
political behavior.” Constitutional Motion at 25; see id. at 27–30. But there is also a long
history of prosecutions for interfering with the outcome of elections; that history provided
Defendant with notice that his conduct could be prosecuted. See Opp’n to Constitutional Motion
at 39–40 (citing six examples of 18 U.S.C. § 241 prosecutions). Indeed, the Supreme Court has
addressed more than one case in which officials were prosecuted for interfering with or
discarding election ballots. United States v. Mosley, 238 U.S. 383, 385 (1915); United States v.
Saylor, 322 U.S. 385, 386 (1944).
In addition, none of the contested elections Defendant invokes is analogous to this case.
See Opp’n to Constitutional Motion at 40–47 (detailing the history of each election). As noted
above, Defendant is not being prosecuted for publicly contesting the results of the election; he is
being prosecuted for knowingly making false statements in furtherance of a criminal conspiracy
and for obstruction of election certification proceedings. And in none of these earlier
circumstances was there any allegation that any official engaged in criminal conduct to obstruct
the electoral process. For instance, following the 2004 Presidential election, Representative
Stephanie Tubbs Jones raised an objection to Ohio’s electoral votes at the joint session; Senator
Boxer signed the objection. 151 Cong. Rec. 199 (Jan. 6, 2005). As Representative Jones
explained in a separate session, that objection was to allow “a necessary, timely, and appropriate
Page 47 of 48 opportunity to review and remedy . . . the right to vote.” Id. Ohio’s electoral votes were then
counted for President Bush. Defendant points to no allegation that Representative Jones’
objection was in furtherance of a criminal conspiracy or designed to obstruct the electoral
process.
Moreover, even if there were an analogous circumstance in which an official had escaped
prosecution, the mere absence of prior prosecution in a similar circumstance would not
necessarily mean that Defendant’s conduct was lawful or that his prosecution lacks due process.
The “exclusive authority and absolute discretion to decide whether to prosecute a case”—within
bounds, supra at 19–20—is a cornerstone of the Executive Branch. Nixon, 418 U.S. at 693
Finally, Defendant argues that, for the Indictment to comply with due process, the
prosecution bears the burden to “provide examples where similar conduct was found criminal.”
Constitutional Reply at 21. Under that theory, novel criminal acts would never be prosecuted.
The Constitution does not so constrain the Executive Branch.
VII. CONCLUSION
For the foregoing reasons, the court will DENY Defendant’s Motion to Dismiss
Indictment Based on Presidential Immunity, ECF No. 74, and Motion to Dismiss the Indictment
Based on Constitutional Grounds, ECF No. 113. A corresponding Order will accompany this
Memorandum Opinion.
Date: December 1, 2023
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge
Page 48 of 48
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