In an effort to avoid prosecution by Special Counsel Jack Smith for his alleged involvement in the riot on January 6, 2021 at the United States Capitol Building, former President Donald Trump’s legal team is employing a unique legal defense.
While Trump has argued for absolute immunity from prosecution in four cases brought by Smith in the same federal court as his election subversion case in Washington D.C., two federal judges have already denied these claims. U.S. Capitol Police officer James Blassingame has initiated a lawsuit against Trump seeking compensation for injuries sustained by himself and fellow officers during the riot; both civil and criminal cases raised against Trump are based upon similar questions of executive immunity despite different potential outcomes.
The legal team plans to raise this issue of executive immunity soon in criminal court, and according to a source familiar with their strategy, they believe that an appeal process in civil court provides the best chance of receiving guidance from the Supreme Court on this matter.
“If we win, the government is going to appeal. If the government wins, we will appeal,” the person said. “…It’s really a unique issue because it goes to whether or not a court would literally have jurisdiction over a case or hear the case.”
In February 2022, U.S. District Court Judge Amit Mehta ruled against Trump on immunity grounds in three lawsuits, including Blassingame’s.
The successful gamble could delay or even derail the criminal case, according to a source. As a result, the possibility of a decision from the D.C. Circuit has raised the stakes to the Supreme Court level, as noted by The Messenger.
“After careful consideration, the court concludes that, on the facts alleged, absolute immunity does not shield President Trump from suit,” Mehta wrote in February 2022.
In November, Senior U.S. District Judge Emmet Sullivan determined that immunity does not protect any acts Trump conducted outside of his official duties.
This conclusion was reached in a separate ruling which allowed the civil rights group’s lawsuit against Trump under the Ku Klux Klan Act, an analog to the Reconstruction-era Civil Rights Law mentioned in Special Counsel Jack Smith’s indictment, to continue forward.
According to the source, Trump’s legal team will argue that the criminal case should not move forward until Blassingame’s lawsuit is resolved as it is seen as the closest precedent for appellate review.
“In addition in the civil case, and we believe it will hold true in the criminal case, all proceedings need to be stayed while this review goes on because it involves an immunity question,” the person familiar with Trump’s legal strategy said.
During a hearing on Thursday regarding a potential conflict of interest involving an attorney in the classified documents case against former President Donald Trump, U.S. District Judge Aileen Cannon postponed judgement on whether one of Trump’s co-defendants understood their lawyer’s potential conflicts and admonished the prosecutorial team for taking up unnecessary time.
The New York Times reported that this was done to ensure that no parties were at a disadvantage during proceedings.
“I do want to admonish the government for frankly wasting the court’s time,” Cannon of the Federal District Court in Fort Pierce, Fla., told David Harbach, a prosecutor working with the special counsel Jack Smith on the case.
I’ll have more on this soon but Jack Smith’s team got slapped HARD today by Judge Cannon in classified docs case. Smith is trying to disqualify defense counsel per “Garcia” hearing. They tried to change their argument during proceedings today. She was having none of it. Hero. pic.twitter.com/drPlNTeD1i
— Julie Kelly 🇺🇸 (@julie_kelly2) October 13, 2023
The Times added:
At issue was a request by Mr. Smith’s team that Judge Cannon hold a hearing to make sure that Mr. Trump’s co-defendants — both of whom are employed by him — understood that their lawyers, who are being paid by a political action committee affiliated with the former president and who have represented witnesses in the case, had possible conflicts.
In the case of one co-defendant, Carlos De Oliveira, the property manager at Mar-a-Lago, Mr. Trump’s private club and residence, the hearing proceeded largely without incident. Mr. De Oliveira’s lawyer, John Irving, had represented three witnesses in the case.