Lawyers for Donald Trump are preparing a legal challenge that will seek to dismiss the Fulton County election interference against him on the grounds he is the newly elected president.
Legal experts have widely predicted that the Fulton election case against Trump would be put on hold until after he leaves office in 2029. But the president-elect’s legal team apparently will try to toss the entire case, according to a person with knowledge of the upcoming challenge who is not authorized to speak publicly on the matter.
The argument is expected to rely on U.S. Justice Department opinions, the first written in 1973 and the second in 2000, that found that a sitting president could not be indicted or brought to trial on federal criminal charges. Trump’s challenge would say this should also apply to state criminal prosecutions, such as the one here accusing Trump of trying to subvert the 2020 presidential election results in Georgia.
A key question is whether the legal motion will try to have the case dismissed while Trump is the president-elect or after he becomes the sitting president when he is sworn in on Jan. 20.
The expected challenge was first reported by Bloomberg News.
A spokesman from the Fulton County District Attorney’s Office declined to comment.
The 2000 Justice Department memorandum said that a federal indictment or criminal prosecution of a sitting president “would impermissibly undermine the capacity of the executive branch to perform its constitutionally assigned functions.”
It noted that because the 1973 analysis “focused exclusively on federal rather than state prosecution of a sitting president,” it would proceed on this assumption as well. For that reason, it did not consider the constitutional concerns that may be implicating by a state prosecution. But the 2000 memorandum also referred to a 1997 U.S. Supreme Court decision that said a state criminal prosecution of a sitting president could raise federalism concerns.
Former federal prosecutor John Malcolm, who now works for the conservative Heritage Foundation, said he believes Trump has a very good argument that he should not to be forced to stand trial in Atlanta while he is president.
“A state as a general matter cannot take any action that frustrates a federal official from performing his federal duties,” he said. “Here you would have a state court and a state prosecutor taking action that would frustrate the ability of the president to do his job.”
But Malcom added, “Whether that would warrant a dismissal of the indictment or hold the indictment basically in limbo while he’s president, that’s a different story.”
New York attorney Nick Akerman said he believes any attempt by Trump’s lawyers to dismiss the Fulton case outright will not succeed.
“It’s totally absurd,” said Akerman, a former Watergate prosecutor. “The federal and state systems are completely different. I don’t see how in the world you can impute the federal policy to the state. That makes absolutely no sense.”
Akerman said the expected course of action is to try the cases against Trump’s 14 co-defendants while he’s president and put the case against him on ice until he leaves office.
Trump currently faces eight felonies in Georgia, connected with his efforts to overturn the results of the state’s 2020 election. Fulton Superior Court Judge Scott McAfee struck down a handful of the original 13 counts lodged against Trump.
TNS
TNS
It is unclear how Trump’s legal team will go about obtaining the relief it would be seeking. It cannot go directly to McAfee to seek a dismissal.
That’s because the Georgia Court of Appeals suspended Trump’s case before McAfee while it considers a challenge to disqualify District District Attorney Fani Willis because of her romantic relationship with former special prosecutor Nathan Wade and the actions she took after the relationship was made public. The appeals court is scheduled to hear oral arguments on the disqualification challenge on Dec. 5.
If Trump’s attorneys want to seek a dismissal soon, they will have to ask the appeals court to send the case back to McAfee either with instructions for him to dismiss the case against Trump or directing McAfee to decide the matter himself. Trump’s lawyers also could wait to try and to have the case dismissed the moment Trump becomes the country’s 47th president.
The Fulton County case is one of four criminal prosecutions brought against Trump. He was convicted in the Manhattan hush-money case of 39 felonies and is scheduled to be sentenced for those crimes on Nov. 26.
Special counsel Jack Smith obtained indictments against Trump in the Jan. 6 insurrection case in Washington and the classified documents case in South Florida. On Friday, a federal judge in Washington granted Smith’s request to vacate any pending court filing deadlines in light of Trump’s election. Trump is expected to immediately fire Smith when he becomes president, effectively ending both federal cases.
TNS
TNS
About the Author
