Amicus Curiae Brief — Donald J. Trump, Petitioner v. United States

Supreme Court briefApr 4, 2024

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No. 23-939

IN THE

SUPREME COURT OF THE UNITED STATES

DONALD J. TRUMP,

Petitioner,

UNITED STATES,

Respondent.

On Writ of Certiorari to the United

States Court of Appeals for the

District of Columbia Circuit

BRIEF AMICI CURIAE OF JOHN DANFORTH,

J. MICHAEL LUTTIG, BARBARA COMSTOCK,

CARTER PHILLIPS, PETER KEISLER, LARRY

THOMPSON, STUART GERSON, ET AL., IN

SUPPORT OF RESPONDENT

MATTHEW W. EDWARDS

RICHARD D. BERNSTEIN

1300 19TH STREET NW

Counsel of Record

WASHINGTON, D.C. 20006 1875 K STREET NW, STE. 100

WASHINGTON D.C. 20006

NANCY A. TEMPLE

(301) 775-2064

KATTEN & TEMPLE LLP

rbernsteinlaw@gmail.com

209 S. LASALLE STREET,

STE. 950

TEMIDAYO AGANGA-WILLIAMS

CHICAGO, IL 60604

ADAM GOULD

ANNA NABUTOVSKY

SELENDY GAY PLLC

1290 AVENUE OF THE AMERICAS

NEW YORK, NY 10104

Counsel for Amici

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................... iii

INTEREST OF AMICI CURIAE .....................1

INTRODUCTION AND SUMMARY OF THE

ARGUMENT.............................................1

ARGUMENT ....................................................6

A PRESIDENT’S FEDERAL CRIMES IN

EFFORTS THAT WOULD OVERTURN

PRESIDENTIAL ELECTION RESULTS

THREATEN THE EXECUTIVE

VESTING CLAUSE AND THE

TWENTIETH AMENDMENT. ................6

II.

A FORMER PRESIDENT DOES NOT

HAVE IMMUNITY FROM CRIMES

UNDERTAKEN IN EFFORTS THAT

WOULD OVERTURN PRESIDENTIAL

ELECTION RESULTS. ............................8

III. SEPARATION OF POWERS OPPOSES

ANY CRIMINAL IMMUNITY FOR A

FORMER PRESIDENT’S OFFICIAL

ACTS THAT WOULD OVERTURN

PRESIDENTIAL ELECTION RESULTS.

................................................................. 15

“At its lowest ebb” ........................... 15

Page

“The unelected and politically

unaccountable branch” ................... 17

“With caution” ................................. 19

This Appeal Is An Improper Vehicle

For Defenses Never Raised Below. 22

1. Qualified Immunity............................. 22

2. Statutory Interpretation ..................... 23

IV. UNDER MR. TRUMP’S ARGUMENTS, A

FUTURE PRESIDENT COULD

DISREGARD FEDERAL CRIMINAL

PROHIBITIONS AGAINST USING THE

MILITARY AND OTHER ARMED

FEDERAL PERSONNEL TO

OVERTURN PRESIDENTIAL

ELECTION RESULTS. .......................... 26

REJECTING PRESIDENTIAL

IMMUNITY FOR POST-ELECTION

USURPATION CRIMES WILL NOT

ENABLE IMPROPER PROSECUTIONS.

................................................................. 32

CONCLUSION ............................................... 35

APPENDIX A AMICI NAMES ...................... 1a

iii

TABLE OF AUTHORITIES

Page

Cases

Burroughs v. United States,

290 U.S. 534 (1934) ........................................... 18

Counterman v. Colorado,

600 U.S. 66 (2023) ....................................... 12, 21

Franklin v. Massachusetts,

505 U.S. 788 (1992) ........................................... 25

Hope v. Pelzer,

536 U.S. 730 (2002) ........................................... 23

Jennings v. Rodriguez,

583 U.S. 281 (2018) ........................................... 24

Lindke v. Freed,

601 U.S. ----, 144 S.Ct. 756, 2024 WL

1120880 (2024)................................................... 15

Midland Asphalt Corp. v. United States,

489 U.S. 794 (1989) ........................................... 23

Mitchell v. Forsyth,

472 U.S. 511 (1985) ........................................... 14

Morrison v. Olson,

487 U.S. 654 (1988) ........................................... 35

Nixon v. Fitzgerald,

457 U.S. 731 (1982), 71 U.S. 475 (1867) .. 3, 9, 10,

14, 20, 22

Rucho v. Common Cause,

139 S. Ct. 2484 (2019) ....................................... 18

Seila Law LLC v. Consumer Financial

Protection Bureau,

140 S. Ct. 2183 (2020) ....................................... 13

Trump v. Anderson,

144 S. Ct. 662 (2024) (per curiam) .............. 17, 20

Trump v. Anderson,

No. 23-719 .......................................................... 25

Trump v. Vance,

591 U.S. 786 (2020) ........................................... 10

United States v. Burr,

25 F. Cas. 30 (C.C.D. Va. 1807)

(Marshall, Circuit Justice) ..................................8

United States v. Nixon,

418 U.S. 683 (1974) .............................................4

United States v. Texas,

599 U.S. 670 (2023) ........................................... 35

Westfall v. Erwin,

484 U.S. 292 (1988) ............................... 10, 11, 18

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) ............... 5, 16, 17, 19, 26, 27

Rules & Statutes

3 U.S.C. § 7 .............................................................. 29

18 U.S.C. § 2 ................................................ 25, 28, 29

18 U.S.C. § 241 ........................................................ 25

18 U.S.C. § 371 ............................................ 21, 25, 26

18 U.S.C. § 401(3) ................................................... 29

18 U.S.C. § 593 .................................................. 27, 28

18 U.S.C. § 595 ........................................................ 28

18 U.S.C. § 1001 ...................................................... 25

18 U.S.C. § 1111-1114............................................. 25

18 U.S.C. § 1503 ...................................................... 25

18 U.S.C. § 1509 ...................................................... 29

18 U.S.C. § 1512 ...................................................... 25

18 U.S.C. § 1621 ...................................................... 25

18 U.S.C. § 1623 ...................................................... 25

18 U.S.C. § 2383 ................................................ 25, 34

28 U.S.C. § 1442(a)(1) ............................................. 19

28 U.S.C. § 2679(b) ................................................. 18

25 Pa. Stat. § 3291 (Class II) .................................. 33

25 Pa. Stat. § 3351-3352 ......................................... 33

25 Pa. Stat. § 3456 .................................................. 33

25 Pa. Stat. § 3471 .................................................. 33

25 Pa. Stat. § 3473-3474 ......................................... 33

Ariz. R.S. § 16-672 to 673 ....................................... 33

Ariz. R.S. § 16-675 to 677 ....................................... 33

Fed. R. Crim. P. 12(c)(3) ......................................... 22

Fed. R. Crim. P. 51(b) ............................................. 22

Ga. Code Ann. §§ 21-2-520 to 528 .......................... 33

Wis. Stat. §§ 9.01(1)-(11) ........................................ 33

Constitution

Pa. Const., art. VII, § 13 ......................................... 33

U.S. Const. amend. I ............................................... 24

U.S. Const. amend. XII ..................................... 11, 13

U.S. Const. amend. XX ............... 2, 6, 8, 9, 11, 13, 14

U.S. Const. art. I, § 8, cl. 18 .................................... 18

U.S. Const. art. II. 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13,

14, 16, 17, 35

vii

Other Authorities

A. Gardner & H. Bailey, Ex-Trump allies

detail effort to overturn election in

Georgia plea videos, WASHINGTON POST

(Nov. 13, 2023), available at

https://www.washingtonpost.com/nation

al-security/2023/11/13/trump-georgiacase-videos-overturn-2020-election/.................. 31

Application of 28 U.S.C. § 455 to

Presidential Appointments of Federal

Judges, 19 Op. O.L.C. 350 (1995) ..................... 24

B. Swan, Read the emails showing Trump

allies’ connections to voting machine

seizure push, POLITICO (Feb. 9, 2022),

available at

https://www.politico.com/news/2022/02/0

9/trump-emails-voting-machineselection-00007449 (linking to December

16-17, 2020 emails) ............................................ 29

B. Swan, Read the never-issued Trump

order that would have seized voting

machines, POLITICO (Jan. 21, 2022),

available at

https://www.politico.com/news/2022/01/2

1/read-the-never-issued-trump-orderthat-would-have-seized-votingmachines-527572 ............................................... 29

viii

Brett Kavanaugh, Separation of Powers

During the Forty-Fourth Presidency and

Beyond, 93 Minn. L. Rev. 1454, 1462

n.36 (2009) ......................................................... 19

THE FEDERALIST NO. 39 (James Madison) ...............7

THE FEDERALIST NO. 85 (Alexander

Hamilton) ........................................................... 32

H. Walker, J. Komensky and E. Yucel,

Mark Meadows Exchanged Texts with

34 Members of Congress About Plans To

Overturn the 2020 Election, TALKING

POINTS MEMO (Dec. 12, 2022), available

https://talkingpointsmemo.com/feature/

mark-meadows-exchanged-texts-with34-members-of-congress-about-plans-tooverturn-the-2020-election ................................ 31

J. Alemany, J. Dawsey, and T. Hamburger,

Talk of martial law, Insurrection Act

draws notice of Jan. 6 Committee,

WASHINGTON POST (Apr. 27, 2022),

available at

https://www.washingtonpost.com/politic

s/2022/04/27/talk-martial-lawinsurrection-act-draws-notice-jan-6committee/.......................................................... 31

J. Alemany, J. Dawsey, and T. Hamburger,

Talk of martial law ............................................ 31

John Danforth, et al., Lost, Not Stolen: The

Conservative Case that Trump Lost and

Biden Won the 2020 Presidential

Election (July 2022), available at

www.lostnotstolen.org ....................................... 33

John Danforth, et al., Lost, Not Stolen: The

Conservative Case that Trump Lost and

Biden Won the .................................................... 33

Jonathan Karl, TIRED OF WINNING (2023) ............. 30

Michael Flynn to Newsmax TV: Trump Has

Options to Secure Integrity of 2020

Election (Dec. 17, 2020), available at

https://www.newsmax.com/politics/trum

p-election-flynnmartiallaw/2020/12/17/id/1002139/ ................... 30

Neil Gorsuch, A REPUBLIC, IF YOU CAN

KEEP IT 7 (2019)............................................... 17

Nev. R.S. §§ 293.407-423 ........................................ 33

Report, Select Comm. to Investigate the

January 6th Attack on the United

States Capitol, H.R. Rep. No. 117-663

(2022) ................................................................. 34

U.S. Army Rejects Using ‘Martial Law’ on ............ 30

U.S. Army Rejects Using ‘Martial Law’ on

Election Fraud, NEWSMAX (Dec. 19,

2020), available at

https://www.newsmax.com/newsfront/el

ection-fraud-martial-law-army-norole/2020/12/19/id/1002337/............................... 30

United States v. Mitchell, et al., Indictment

(D.D.C. March 1, 1974) ...................................... 25

Washington’s Farewell Address (1796),

available at

https://www.govinfo.gov/content/pkg/GP

O-CDOC-106sdoc21/pdf/GPO-CDOC106sdoc21.pdf.......................................................3

INTEREST OF AMICI CURIAE

The amici named in Appendix A submit this brief.

Amici include former officials who worked in numerous administrations from former Presidents Nixon to

Trump, including officials in the White House and

Departments of Justice, Homeland Security, and Defense, former members of Congress, and others who

support a strong Presidency.1 Amici have an interest

in a strong Presidency where each elected President

serves only the term or terms to which he or she has

been elected. Amici speak only for themselves personally, and not for any entity or other person.

INTRODUCTION AND SUMMARY OF THE

ARGUMENT

Presidential immunity, under any label, should

never be so broad as to embolden an outgoing President’s violations of federal criminal statutes as part

of efforts that would prevent what Article II mandates—the vesting of the authority and functions of

the Presidency in the next, lawfully-elected President. This basis to affirm rests on a compelling legal

principle: Any presidential immunity has to flow from

protecting Article II and the Presidency it designs.

But there can be no Article II rationale for extending

criminal immunity to a former President’s alleged

Amici state that no counsel for any party authored this

brief in whole or in part and that no entity, aside from amici

and their counsel, made any monetary contribution toward the

preparation or submission of this brief.

federal crimes undertaken in efforts that would violate Article II’s provisions that limit a presidential

term to four years and vest the executive power in the

duly-elected successor.

One dispositive basis that fully sustains the judgment of the D.C. Circuit is that a President does not

have immunity to engage in unofficial or official acts

that constitute federal statutory crimes that would

overturn presidential election results. J.A. 33, 40-44.

A core allegation of the Indictment is that Mr. Trump

knew that it was false to say there had been “outcome-determinative voting fraud in the [2020] election,” but nonetheless engaged in criminal lies and

conspiracies “to overturn the legitimate results of the

2020 presidential election.”2 Under these allegations,

former President Trump’s violations of federal criminal statutes, if successful, would have usurped the

authority and functions of the Presidency for the current term to which President Biden was legitimately

elected. That constitutes an alleged effort that, if successful, would have violated Article II, Section 1,

Clause 1, also called the Executive Vesting Clause,

and the Twentieth Amendment.

The context of former President Trump’s alleged

crimes, even assuming some crimes involved an official act, presents an especially weak case for

Indictment (J.A. 180-236), ¶¶ 2, 4, 7-8; see also, e.g., id.

at ¶¶10-13, 15, 19-22, 25, 29-33, 35-37, 41, 45-46, 50-52, 56, 64,

66-67, 70, 74, 77, 81, 83, 86, 90, 92-93, 99-100, 102, 104, 116,

118.

extending presidential immunity to federal criminal

prosecution. Nixon v. Fitzgerald, 457 U.S. 731 (1982),

emphasized that the justification for civil immunity

is not to protect any individual President, but rather

“the Nation that the Presidency was designed to

serve.” Id. at 753 (emphasis added). The last thing

that would serve the Nation, the Presidency, and Article II would be to embolden Presidents who lose

reelection to engage in federal criminal statutory violations as part of efforts to prevent the vesting of executive power required by Article II in their lawfullyelected successors. The scope of federal criminal immunity proposed by Mr. Trump would turn Nixon v.

Fitzgerald on its head by encouraging the greatest

possible threat of “intrusion on the authority and

functions of the Executive Branch,” id. at 754 — a losing President’s criminal efforts that would usurp the

authority and functions of a duly-elected successor

President. As George Washington stated, it would

“destroy[]” our constitutional system if “cunning, ambitious, and unprincipled men will be enabled to subvert the power of the people and usurp for themselves

the reins of government.” Washington’s Farewell Address, at 14 (1796) (emphasis added).3

The D.C. Circuit’s narrow holding was that: “The

Executive Branch’s interest in upholding Presidential elections and vesting power in a new President

under the Constitution and the voters’ interest in

Available at https://www.govinfo.gov/content/pkg/GPOCDOC-106sdoc21/pdf/GPO-CDOC-106sdoc21.pdf.

democratically selecting their President . . . compel

the conclusion that former President Trump is not

immune from prosecution under the Indictment.” J.A.

33-34. The Court emphasized: “[O]ur analysis is specific to the case before us, in which a former President

has been indicted on federal criminal charges arising

from his alleged conspiracy to overturn federal election results and unlawfully overstay his Presidential

term.” J.A. 33. As the court reiterated: “We cannot accept former President Trump’s claim that a President

has unbounded authority to commit crimes that

would neutralize the most fundamental check on executive power — the recognition and implementation

of election results.” J.A. 43.

Part I of this brief reviews the pertinent constitutional provisions and history. Part II demonstrates

that the need to protect Article II by deterring usurpation of the Presidency provides a compelling

ground for rejecting presidential immunity for the

category of federal crimes undertaken on or after election day in efforts that would overturn presidential

election results. This brief will call this category

“Post-Election Usurpation Crimes.” Rejecting presidential immunity for Post-Election Usurpation

Crimes would not preclude possible federal criminal

immunity for a former President’s official acts in

some different situation, such as using or preparing

to use the military abroad or foreign relations activities. See United States v. Nixon, 418 U.S. 683, 707,

710, 712 n.19 (1974).

Part III shows that under separation-of-powers

principles, Congress has the power to enact federal

crimes of sufficient scope to protect the constitutionally-mandated transfer of executive power against

the criminal efforts of an outgoing President that

would overturn presidential election results. Under

the framework of Justice Robert Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343

U.S. 579 (1952) (“Youngstown Concurrence”), when a

President commits Post-Election Usurpation Crimes,

even if by an assumedly official act, that President’s

“power is at its lowest ebb.” Id. at 637.

Part IV examines the dangers of creating any immunity from prosecution for a former President’s

Post-Election Usurpation Crimes. Here, for example,

the former President contends that he was acting officially when he allegedly conspired to commit federal

criminal conduct by using Department of Justice personnel to make false statements to state officials to

support his efforts to overturn state election results.

Indictment, ¶¶ 70, 75, 78-79, 84. If that sufficed for

presidential immunity, the precedent would improperly encourage a future President to violate federal

criminal statutes by, for example, deploying domestically Department of Defense personnel, and other

armed federal personnel, in efforts to overturn presidential election results.

Part V shows that because of other protections, a

future President does not need presidential immunity

to contest zealously future presidential election results. These protections include the mens rea and

other elements in federal criminal statutes. These

protections are illustrated by the narrowly-drawn Indictment in this case.

ARGUMENT

A PRESIDENT’S FEDERAL CRIMES IN

EFFORTS THAT WOULD OVERTURN

PRESIDENTIAL ELECTION RESULTS

THREATEN THE EXECUTIVE VESTING

CLAUSE AND THE TWENTIETH

AMENDMENT.

Article II, Section 1, Clause 1 of the Constitution

provides:

The executive Power shall be vested in a President of the United States of America. He shall

hold his Office during the Term of four Years,

and, together with the Vice President, chosen for

the same Term, be elected, as follows . . . .

(Emphases added).

Former President Trump argues that he should be

granted presidential immunity based on the “Executive Vesting Clause.” Pet. Br. 10-11. This has it backwards. The second sentence of the Executive Vesting

Clause mandated that Mr. Trump leave office at the

end “of four Years” after he lost. This mandate is reiterated by the Twentieth Amendment. Post-Election

Usurpation Crimes pose the most serious threat to

the Executive Vesting Clause.

The Constitutional Convention initially adopted

provisions of a draft Constitution that would have

elected a President for a single seven-year term and

made each President ineligible for reelection. 1 Records of the Federal Convention, 64, 68-69 (M. Farrand

ed., Yale University Press 1911). The Convention

later switched course and enabled a President to seek

reelection, but the Executive Vesting Clause required

that President to leave at the end of his term if he

lost.

This change was an important selling point during

ratification. In Federalist No. 39, James Madison

wrote that two features that made the United States

created by the Constitution “a genuine republic” were

that “[t]he President is indirectly derived from the

choice of the people” and holds office for “a limited period,” namely “the period of four years.”4

This was described in further detail by Edmund

Randolph to the Virginia Ratifying Convention. Randolph explained that his original position at the Constitutional Convention had been “that the reeligibility of the President was improper.” 3 The Debates in

the Several State Conventions 485 (J. Elliot ed., 2d ed.

1836). He “altered [his] opinion” and subsequently defended the Constitution’s permission for reelection by

relying on the mandates of the Executive Vesting

Clause. Id. at 485-86. He stated that a sitting President “cannot hold [his office] over four years, unless

THE FEDERALIST NO. 39 (James Madison).

he be reelected, any more than if he were prohibited

[from running].” Id. at 486 (emphasis added). Randolph stated that a President who loses reelection is

“displaced at the end of the four years” by the Executive Vesting Clause. Id. at 486.

As Chief Justice Marshall put it, “the 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.” United States v. Burr,

25 F. Cas. 30, 34 (C.C.D. Va. 1807) (Marshall, Circuit

Justice) (emphasis added). The Twentieth Amendment reiterates the mandate that a President peacefully relinquish executive power to his or her successor: “The terms of the President and the Vice President shall end at noon on the 20th day of January . . .;

and the terms of their successors shall then begin.”

(Emphases added).

Any President who loses reelection, but violates

federal criminal statutes in efforts that would overturn the results, threatens two violations of the Executive Vesting Clause and Twentieth Amendment.

First, that President would threaten to extend the

four-year term in which executive power has been

vested by election in that President. Second, that

President would threaten to prevent the vesting of

the authority and functions of the Presidency in the

newly-elected President.

II.

A FORMER PRESIDENT DOES NOT

HAVE IMMUNITY FROM CRIMES

UNDERTAKEN IN EFFORTS THAT

WOULD OVERTURN PRESIDENTIAL

ELECTION RESULTS.

What kind of Constitution would immunize and

thereby embolden losing first-term Presidents to violate federal criminal statutes—through either official

or unofficial acts—in efforts that would usurp a second term? Not our Constitution, where the Executive

Vesting Clause and the Twentieth Amendment mandate: four years, you lose reelection, you get out, and

the Presidency is vested in your successor.

No case supports any immunity for a former President’s Post-Election Usurpation Crimes. Nixon v.

Fitzgerald addressed immunity from civil damages.

Nixon v. Fitzgerald explained that the Court “must

balance the constitutional weight of the interest to be

served [by civil damages] against the dangers of intrusion on the authority and functions of the Executive Branch.” 457 U.S. at 754. The Court cautioned

that “[i]n defining the scope of an official’s absolute

privilege, . . . the sphere of protected action must be

related closely to the immunity’s justifying purposes.”

Id. at 755.

Nixon v. Fitzgerald reserved deciding whether

presidential immunity applies at all—much less in

which cases—to violations of federal criminal statutes. Nixon v. Fitzgerald explained that the balancing

would be different: “[t]he Court has recognized . . .

that there is a lesser public interest in actions for civil

damages than, for example, in criminal prosecutions.” Id. at 754 & n.37. Before Nixon, Mississippi v.

Johnson also expressly left unaddressed whether a

President “may be held amenable, in any case, otherwise than by impeachment for crime.” 71 U.S. 475,

498 (1867).

In Trump v. Vance, 591 U.S. 786 (2020), thenPresident Trump sought an immunity from a state

grand jury subpoena concerning private conduct. Justice Kavanaugh’s concurrence stated that when a sitting President seeks an immunity in the context of a

state criminal investigation, a court must “balance”

the “interests of the criminal process and the Article

II interests of the Presidency.” Id. at 812-13. In

Vance, as in Nixon v. Fitzgerald and Johnson, “the

Article II interests of the Presidency” were entirely on

the side of the sitting or former President.

In marked contrast to those cases, the current

case involves a prosecution for a President’s alleged

federal crimes that threatened the most serious “intrusion on the authority and functions of the Executive Branch.” Nixon v. Fitzgerald, 457 U.S. at 754. An

outgoing President allegedly violated federal criminal

statutes as part of efforts that, if successful, would

have usurped the functions and authority of a lawfully-elected successor President. In this new and different context, both the “interests of the criminal process” and “the Article II interests of the Presidency”

are aligned and oppose federal criminal immunity.

Context matters when this Court decides both

whether and to what extent a court-defined immunity

exists or applies. As Westfall v. Erwin, 484 U.S. 292

(1988), explained in unanimously choosing a narrower scope of absolute immunity for federal officials

from liability under state law for official acts, the

Court’s task is to determine whether and to what extent any immunity applies “in particular contexts.”

Id. at 299 (emphasis added).

Even assuming criminal immunity for a former

President might apply in other situations, immunity

should not extend to the category of Post-Election

Usurpation Crimes. Section 1 of Article II, as reiterated by the Twelfth and Twentieth Amendments, protects the Presidency by specifying who is vested with

executive powers. The interests of Article II support a

criminal prosecution of a former President’s PostElection Usurpation Crimes to protect Article II’s assignment of “who” is vested with executive powers.

Amici believe that protecting the Constitution also

opposes federal criminal immunity in many situations involving only “how” executive powers were exercised. But the Executive Vesting Clause and Twentieth Amendment provide an additional, dispositive

basis for denying immunity for Post-Election Usurpation Crimes for four reasons.

First, deterring Post-Election Usurpation Crimes

protects the Presidency designed by Article II itself.

Article II is deeply concerned with ensuring that

“who” is President is the person elected pursuant to

Article II. Mr. Trump emphasizes the need to encourage a President to engage in “‘bold and unhesitating

action.’” Pet. Br. 7 (citation omitted). Nothing in Article II could justify immunizing and encouraging “bold

and unhesitating” criminal conduct by a President to

seize control of the office beyond the term to which he

or she has been elected.

Former President Trump argues that the prospect

of federal prosecution will have chilling effects on

Presidents in other contexts. Pet. Br. 22-23. This conflates the narrow category of Post-Election Usurpation Crimes with a President’s activities outside that

category. The chilling effects that Mr. Trump offers

relate almost entirely to the use of the military

abroad or to foreign relations. Pet. Br. 22-23; cf.

Trump v. Hawaii, 138 S. Ct. 2392, 2409 (2018) (border security is part of “‘the context of international

affairs and national security’”) (citation omitted).

Akin to United States v. Nixon, 418 U.S. at 707, 710,

712 n.29, this Court should reject presidential immunity for Post-Election Usurpation Crimes, while

recognizing possible presidential immunity from

prosecution for presidential actions in using the military abroad (and in preparing to do so) and foreign

relations.

Moreover, when “chilling effects” arguments are

raised, this Court also considers the “value [that] lies

in protecting against . . . profound harms.” Counterman v. Colorado, 600 U.S. 66, 80 (2023); id. at 107

(Barrett, J., dissenting) (“True threats carry little

value and impose great cost.”). There is no more profound threatened harm under Article II than criminal

efforts that would usurp the Presidency.

Second, deterring Post-Election Usurpation

Crimes protects Article II’s design for presidential

elections. The Executive Vesting Clause mandates—

and the Twentieth Amendment reiterates—that a

first-term President must leave at the end of a fouryear term when the people have elected someone else.

“To justify and check” the President’s “unique [authority] in our constitutional structure,” Article II

“render[s] the President directly accountable to the

people through regular elections.” Seila Law LLC v.

Consumer Financial Protection Bureau, 140 S. Ct.

2183, 2203 (2020). Article II’s “direct[] account[ability],” id., is antithetical to creating an immunity for a

President who loses reelection but commits Post-Election Usurpation Crimes.

Part and parcel of Article II’s design for the Presidency is specifying which officials determine presidential election results. The Executive Vesting

Clause requires that the President “be elected, as follows . . . .” (Emphasis added.) Pursuant to the immediately following Clause 2 of Section 1 of Article II,

state law sets forth which state officials determine

who won each state. Under Clause 3, as reiterated by

the Twelfth Amendment, the lists of electoral votes

are “open[ed]” and “counted” in the presence of Congress and the Vice President.

One key reason Article II did not assign even a

ceremonial role to a President concerning presidential election results is that a President has a powerful

incentive to employ dishonesty or coercion to avoid

the ignominy of electoral defeat. Ignoring this, former

President Trump suggests that presidential immunity should protect from prosecution a former President who made a “corrupt bargain” with a Speaker of

the House to steal the Presidency. Pet. Br. 22 (discussing John Quincy Adams). But this Court has rejected absolute immunity where in a particular context the holders of such immunity would have a

strong incentive to break the law. See Mitchell v. Forsyth, 472 U.S. 511, 523 (1985) (“The danger that high

federal officials will disregard constitutional rights in

their zeal to protect the national security is sufficiently real to counsel against affording such officials

an absolute immunity.”). Here, it would turn Article

II on its head to create any immunity that encouraged

a President to violate federal criminal statutes by

seeking to corrupt, deceive, or coerce the officials to

whom, unlike the President, Article II assigns duties

concerning presidential election results.

Third, the “public interest,” Nixon v. Fitzgerald,

457 U.S. at 754, could not be higher in federal criminal prosecutions that protect the Executive Vesting

Clause and the Twentieth Amendment. Accordingly,

there should be no immunity from federal prosecution

for a former President’s Post-Election Usurpation

Crimes—whether by official or unofficial acts.

Fourth, the rare category of Post-Election Usurpation Crimes involves the narrowest sliver of potential

federal criminal cases. See Mitchell, 472 U.S. at 522

(rejecting absolute immunity in particular context

where “unfounded and burdensome litigation” would

be “rare”). It is nonsense to argue that this “‘narrow’

exception would rapidly swallow the rule.” Pet. Br.

49. The category of Post-Election Usurpation Crimes

derives from the constitutionally-mandated transfer

of executive power following presidential election results. See Parts I-II, supra. Therefore, that category

applies only to criminal efforts that, if successful,

would overturn presidential election results, and not

remotely to every action that affects a President’s

“getting reelected.” Pet. Br. 50.

III.

SEPARATION OF POWERS OPPOSES

ANY CRIMINAL IMMUNITY FOR A

FORMER PRESIDENT’S OFFICIAL

ACTS THAT WOULD OVERTURN

PRESIDENTIAL ELECTION RESULTS.

“At its lowest ebb”

A President’s criminal efforts to overturn presidential election results are either unofficial acts or, at

most, might fall at the farthest edge of the outer perimeter of a President’s official acts. See Lindke v.

Freed, 601 U.S. ----, 144 S.Ct. 756, 2024 WL 1120880,

at *10 (2024) (an elected official’s statements “to promot[e] his prospects for reelection” are for “personal

reasons,” and not governmental action). Either way,

under Justice Robert Jackson’s three-category framework for analyzing separation-of-powers arguments

concerning a President, the Court should not create

any presidential immunity from federal criminal

prosecution for Post-Election Usurpation Crimes.

The third category is:

When the President takes measures incompatible with the express or implied will of Congress,

his power is at its lowest ebb, for then he can rely

only upon his constitutional powers minus any

constitutional powers of Congress over the matter. Courts can sustain exclusive presidential

control in such a case only by disabling the Congress from acting upon the subject. Presidential

claim to a power at once so conclusive and preclusive must be scrutinized with caution, for

what is at stake is the equilibrium established by

our constitutional system.

Youngstown Concurrence, 343 U.S. at 637-38 (emphases added).

Justice Robert Jackson explained that separation

of powers would be nullified if a President could evade

a statute enacted by Congress merely by invoking, as

former President Trump does here, Article II, Section

1’s vesting of executive power and Article II, Section

3’s power to “‘take Care that the Laws be faithfully

executed. . . . .’” Id. at 640-41, 646. Adopting such

boundless arguments would both lead to “unlimited

executive power” and negate “the principle that ours

is a government of laws, not of men, and that we submit ourselves to rulers only if under rules.” Id. at 641,

646. “Men [and women] have discovered no technique

for long preserving free government except that the

Executive be under the law, and that the law be made

by parliamentary deliberations.” Id. at 655.

In particular, nothing in Article II warrants giving

Presidents powers that “supersede representative

government of internal affairs.” Id. at 644. And as

Trump v. Anderson recently reiterated, under Article

II, “‘the [elected] President . . . represent[s] all the

voters in the Nation.’” Trump v. Anderson, 144 S. Ct.

662, 670 (2024) (per curiam) (emphasis and second

brackets in original). Here, former President Trump

allegedly violated federal criminal statutes as part of

efforts that would have substituted a usurper for the

newly-elected President—and therefore the representative—chosen by the Nation’s voters. Where a

prosecution under a federal criminal statute protects

the Presidency against this greatest of injuries to the

Presidency, there can be no separation-of-powers violation. Under Category 3 of the Youngstown Concurrence, no context could less justify a presidential immunity than violations of federal criminal statutes in

efforts that would wrongfully seize the Presidency.

“The unelected and politically unaccountable branch”

“At our founding people fought a revolution for

the right not to be ruled by a monarch or any other

unelected elite, judges included.” Neil Gorsuch, A REPUBLIC, IF YOU CAN KEEP IT 7 (2019). Judicial

creation of any presidential immunity for Post-Election Usurpation Crimes would violate separation of

powers by arrogating legislative powers to this Court.

“Consideration of the impact of today’s ruling on democratic principles cannot ignore the effect of the unelected and politically unaccountable branch of the

Federal Government assuming such an extraordinary and unprecedented role.” Rucho v. Common

Cause, 139 S. Ct. 2484, 2507 (2019).

First, Congress has the power to enact federal

criminal statutes whose operation protects the transfer and vesting of “the executive power” pursuant to

“election” against “impairment or destruction,

whether by force or by corruption.” Burroughs v.

United States, 290 U.S. 534, 545 (1934). Article I,

Section 8, Clause 18 empowers Congress: “To make

all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all

other Powers vested by this Constitution in the Government of the United States, or in any Department

or Officer thereof.” When the operation of a federal

criminal statute protects the constitutionally-mandated transfer of executive power, that statute assists

“carrying into Execution” the vesting and exercise of

executive power in and by an elected successor President.

Second, “Congress is in the best position to provide

guidance for the complex and often empirical inquiry

whether absolute [or any] immunity is warranted in

a particular context.” Westfall, 484 U.S. at 300. Congress has used its necessary-and-proper power to legislate certain civil immunities for every executive

branch officer or employee “while acting within the

scope of his office or employment.” See, e.g., 28 U.S.C.

§ 2679(b). Congress also has enabled, under certain

conditions, the removal of “a civil action or criminal

prosecution” from state court to federal court by “any

officer (or person acting under that officer) of the

United States.” 28 U.S.C. § 1442(a)(1). Moreover, in

1999 Congress let the Independent Counsel provisions of the Ethics in Government Act expire because

it perceived that some investigations had unduly distracted sitting Presidents. See Brett Kavanaugh, Separation of Powers During the Forty-Fourth Presidency

and Beyond, 93 Minn. L. Rev. 1454, 1462 n.36 (2009).

The issue here is not what are the federal criminal immunities for a former President, and in which

contexts, that this Court’s Justices would support if

they were members of Congress. The issue is which

federal criminal immunities in which contexts, if any,

are so essential to protecting the Presidency that the

Constitution requires that this Court create them despite the fact that for 235 years politically-accountable Congresses have not legislated them. Here, however, protecting the Presidency opposes any court-created immunity for a former President’s Post-Election

Usurpation Crimes. See Parts I-III.A-B, supra.

“With caution”

The Court would properly proceed “with caution,”

Youngstown Concurrence, 343 U.S. at 638, by rejecting presidential immunity for unofficial and official

acts that constitute Post-Election Usurpation

Crimes. The Court could leave for any future case any

questions about presidential immunity for official

acts in other contexts, and should also note that Congress remains free to legislate any presidential immunity in any context.

Mr. Trump incorrectly argues that rejecting presidential immunity for Post-Election Usurpation

Crimes would be a “gerrymandered” result. Pet. Br.

47-48. To the contrary, that cautious approach rests

on a principled legal basis, while avoiding unnecessarily addressing potentially distinguishable issues.

Rejecting presidential immunity for Post-Election

Usurpation Crimes will help deter every future President from engaging in that category of federal

crimes. For example, doing so would help deter a second-term President from violating a federal criminal

statute to overturn the presidential election defeat of

that President’s acolyte. A second-term President

might have a strong incentive to overturn such an

election defeat for political reasons, see Dist. Ct. Doc.

122, at 11-12 (Mr. Trump’s brief discussing President’s Grant’s efforts to overturn 1876 results), or for

personal advantage, including avoiding federal prosecution for unofficial acts.

This Court often employs a narrow, principled category to resolve a case, and leaves issues that are unnecessary to decide for future development. Recently,

for example, Trump v. Anderson emphasized that “it

is the combination of all the reasons set forth in this

opinion . . . that resolves this case.” 144 S. Ct. at 671.

Mr. Trump also argues that Nixon v. Fitzgerald

precludes rejecting immunity because the category of

Post-Election Usurpation Crimes rests on “improper

motive.” Pet. Br. 47-49. This is wrong for three reasons. First, this category rests on protecting the

constitutionally-mandated transfer of executive

power, not on motive. The category applies where, regardless of motive, the impact of a President’s federal

crimes, if successful, would overturn presidential

election results. Suppose a President, despite losing

in court, continues to believe he or she won because a

State did not reject enough mail-in ballot signatures.

That President then makes criminally-false statements to state officials, Department of Justice officials, and members of Congress and the Vice President about other subjects—including that there were

more votes than voters, that large numbers of dead

people, non-citizens, and non-residents voted, and

that machines switched votes away from that President. See Indictment, ¶¶ 12, 15, 21, 31, 35, 45, 51, 74,

86, 90, 93. The category of Post-Election Usurpation

Crimes applies.

Second, Mr. Trump’s argument would immunize

every federal crime that requires scienter. But a criminal statutory scienter element weakens the argument for any presidential immunity. As here, such elements narrow the scope of criminal liability. See 18

U.S.C. §§ 371 (“conspire . . . to defraud”); 1512(c) (“corruptly”); 1512(k) (“conspires to commit”); 241 (“conspire to injure, oppress, threaten, or intimidate”). Scienter elements also refute Mr. Trump’s claim of

“chilling effects.” A criminal scienter requirement

minimizes any “potential to chill” conduct “outside

the[] boundaries” of the criminal category. Counterman, 600 U.S. at 75.

Third, Nixon v. Fitzgerald expressly left open

whether and to what extent presidential immunity

would apply to federal crimes. 457 U.S. at 754 & n.37.

Therefore, Petitioner’s reliance in a criminal case on

what Nixon v. Fitzgerald said about purpose in a civil

action begs the question.

This Appeal Is An Improper Vehicle For Defenses Never Raised Below.

Qualified Immunity

This appeal is an improper vehicle for this Court

to create a qualified immunity never raised below.

First, Mr. Trump did not raise any qualified immunity argument by the District Court’s October 23, 2023

motion deadline. Dist. Ct. Doc. 82, at 6. To the contrary, Mr. Trump put all his immunity eggs in the

“absolute immunity” basket, arguing in both the District Court and Circuit Court that presidential immunity applies to all official acts regardless of how

illegal those acts were. Dist. Ct. Doc. 74, at 23, 25;

Circuit Court Doc. 2033200, at 9, 32-38. The Federal

Rules of Criminal Procedure provide no exemption for

the post-Presidency litigation decisions of Mr. Trump.

Under Rule 12(c)(3), if Mr. Trump is to raise belatedly

a qualified immunity defense, he must first “show[]

good cause” to the District Court. See also Fed. R.

Crim. P. 51(b) (requiring a defendant to “preserve a

claim of error by informing the [district] court”).

Second, like all criminal defendants, a former

President is already protected by “the ‘fair warning’

requirement,” which “is identical” to “the qualified

immunity standard” in civil cases for executive officials. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002) (emphasis added) (citing cases). Relabeling a fair warning defense as “qualified immunity,” but only for a

former President, would improperly create a new

ground for a collateral order appeal. But this Court

“ha[s] interpreted the collateral order exception ‘with

the utmost strictness’ in criminal cases.” Midland Asphalt Corp. v. United States, 489 U.S. 794, 799 (1989)

(citation omitted). Certainly, a case where a “qualified immunity” defense was not mentioned below is

not the vehicle to depart from that “utmost strictness.”

Third, even assuming Presidents may have a qualified immunity defense from federal criminal prosecution in some contexts, this Court should not create

any qualified immunity for Post-Election Usurpation

Crimes. Qualified immunity is designed to embolden

its holder, see Pet. Br. 46, and there is no basis to embolden a President to make criminal efforts that

would overturn presidential election results. See

Parts II-III.A-B, supra.

Statutory Interpretation

This appeal is an improper vehicle for Mr.

Trump’s belated argument that the criminal statutes

under which he was indicted do not clearly state that

they apply to “official action of the President.” Pet. Br.

38-40. First, statutory interpretation canons are not

immunity arguments and thus fall outside this

Court’s Question Presented.

Second, Mr. Trump never raised in any court below any argument that a criminal statute must contain a reference to the “official action of the President,” id., much less as an immunity argument. Mr.

Trump inaccurately cites his motion to dismiss

“Based On Statutory Grounds,” D. Ct. Doc. 114—not

his separate immunity motion. That statutory motion

invoked only different canons involving the First

Amendment, due process, and lenity. Id. at 15-19, 23.

The District Court’s ruling on that statutory motion

has been stayed at Mr. Trump’s insistence. And Mr.

Trump made no statutory interpretation argument of

any kind in the D.C. Circuit.

Third, at most, a clear statement exemption for a

former President would apply in a federal criminal

case only if two conditions were both met: (a) the statutory noun identifying offenders may fairly be read

as too narrow to include a President and (b) “such application [of the statute] would involve a possible conflict with his constitutional prerogatives.” Application of 28 U.S.C. § 455 to Presidential Appointments

of Federal Judges, 19 Op. O.L.C. 350, 352 (1995) (emphasis added); see also Jennings v. Rodriguez, 583

U.S. 281, 296 (2018) (constitutional-doubt canon requires both ambiguity and “serious doubt” whether

broader reading violates the Constitution); A.

SCALIA & B. GARNER, READING LAW 250 (2012)

(“The doubt must be ‘substantial.’”). Neither condition is met here.

The first condition fails because the only fair reading is that the all-encompassing nouns in the statutes

employed in the Indictment include a President. See

18 U.S.C. §§ 2 (“Whoever”); 241 (“two or more persons”); 371 (“two or more persons”); 1512(c) (“Whoever”); 1512(k) (“Whoever”). The fair reading of “whoever” and “persons” is much broader than “agency,”

which did not apply to the President in Franklin v.

Massachusetts, 505 U.S. 788, 800-01 (1992). If “whoever” and “persons” are not broad enough, then every

official act of a President is likely exempt from every

existing federal criminal statute. Mr. Trump’s argument would exempt a President’s official act ordering

an opponent’s murder—as “whoever” is the noun used

in the federal murder statutes. 18 U.S.C. §§ 2, 11111114. It would also exempt an official act of a President that was part of a rebellion or insurrection, as

18 U.S.C. § 2383 also uses “[w]hoever.” Cf. Trump v.

Anderson, No. 23-719, Oral Arg. Tr. at 54 (U.S. Feb.

8, 2024) (Mr. Trump’s counsel asserts that “presidential immunity” applies “under 2383”).

Indeed, Mr. Trump’s argument would mean that

former President Nixon was exempt from criminal

prosecution in Watergate. In the indictment of John

Mitchell and others—for which former President

Nixon was an unindicted co-conspirator—every general criminal statute used the nouns “whoever” or

“persons.” See United States v. Mitchell, et al., Indictment (D.D.C. March 1, 1974) (alleging violations of 18

U.S.C. §§ 371, 1001, 1503, 1621, 1623). There, the

presidential election-related conduct alleged to violate 18 U.S.C. § 371 included what doubtlessly would

be, per Mr. Trump’s arguments, official acts—potential use of CIA funds, interactions with the Department of Justice and the FBI concerning “official business,” meeting with senior White House staff in the

Oval Office, and possible grants of “executive clemency.” Id., Count One, ¶¶ 13, 15-16, 17(f)-(g), 18

(Overt Acts 8, 33, 44).

Moreover, the second condition fails because a

President has zero constitutional prerogatives in determining presidential election results. Congress undoubtedly has the power to include a former President’s official act as part of a federal crime where that

crime, if successful, would overturn presidential election results. See Parts II-III.A-B, supra.

IV.

UNDER MR. TRUMP’S ARGUMENTS, A

FUTURE PRESIDENT COULD

DISREGARD FEDERAL CRIMINAL

PROHIBITIONS AGAINST USING THE

MILITARY AND OTHER ARMED

FEDERAL PERSONNEL TO OVERTURN

PRESIDENTIAL ELECTION RESULTS.

Under the Youngstown Concurrence, when a President turns the military “inward”—that is, when the

President uses the military both domestically and

“not because of rebellion”—the President “is subject

to limitations consistent with a constitutional Republic whose law and policy-making branch is a

representative Congress. . . . No penance would ever

expiate the sin against free government of holding

that a President can escape control of executive powers by law through assuming his military role.” 343

U.S. at 645-46. Yet, presidential immunity for criminal misuse of the military and other armed federal

personnel to overturn presidential election results

would follow from former President Trump’s arguments.

The Indictment alleges that Mr. Trump “attempted to use the Justice Department to make

knowingly false claims of election fraud to officials in

the targeted states through a formal letter under the

Acting Attorney General’s signature” that urged “the

targeted states to replace legitimate Biden electors

with the Defendant’s.” Indictment, ¶¶70, 75; see also

id. ¶¶78-79, 84. Mr. Trump has argued these were official acts because the President “oversaw” and could

“replace the Acting Attorney General.” Appl. at 5. Under Mr. Trump’s boundless arguments, a future President would also be emboldened to direct the Secretaries of Defense and Homeland Security (and others)

to deploy the military and other armed federal personnel to support efforts to overturn that President’s

reelection loss.

Existing federal criminal statutes deter a President’s use of the military and armed federal personnel to overturn presidential election results. In addition to the statutory provisions in the Indictment, 18

U.S.C. § 593 makes it a crime when “an officer or

member of the Armed Forces of the United States . . .

imposes or attempts to impose any regulations for

conducting any general or special election in a State,

different from those prescribed by law, or . . . interferes in any manner with any election officer’s discharge of his duties.” 18 U.S.C. § 2(a) makes it a crime

when anyone “aids, abets, counsels, commands, induces or procures” commission of an offense under 18

U.S.C. § 593. (Emphasis added.) See also 18 U.S.C. §

2(b) (criminalizing “[w]hoever willfully causes an act

to be done which if directly performed by him or another would be an offense against the United States”)

(emphasis added)).

Under 18 U.S.C. § 595, it is also a crime when any

“person employed in any administrative position by

the United States, or by any department or agency

thereof, . . . uses his official authority for the purpose

of interfering with, or affecting, . . . the election of any

candidate for the office of President, Vice President,

[or] Presidential elector.” Under 18 U.S.C. § 2(a), a

President commits a crime by commanding federal

personnel to commit an offense under 18 U.S.C. § 595.

Mr. Trump’s arguments to immunize a former

President’s Post-Election Usurpation Crimes, however, would undo the deterrence provided by these

federal criminal statutes. A future President would

be emboldened to deploy the military and armed federal personnel to (a) prevent the counting of votes in

an unfavorable county or of a certain type (such as

mail-in ballots) by seizing ballots and voting machines, and (b) bar physically his or her opponent’s

electors from casting their electoral votes on the day

and in the place required by 3 U.S.C. § 7 and state

law. And presidential immunity from federal criminal

liability under 18 U.S.C. §§ 1509, 401(3), and 2(a) and

(b) would embolden a President to command the military and armed federal agents to “disregard[] this

Court’s” orders to desist. Pet. Br. 22.

These terrifying possibilities are real. Indeed, after the electors voted on December 14, 2020, there

were calls from close allies of former President Trump

for him to deploy the military.

Under an executive order dated December 16,

2020, then-President Trump would have “order[ed]”

that “the Secretary of Defense shall seize” voting machines and records, including by using federalized

National Guard units.5 The draft order was created

by a lawyer assisting Rudy Giuliani in efforts to overturn the 2020 election results.6

On December 16, 2020, former General and National Security Advisor Michael Flynn, among others,

B. Swan, Read the never-issued Trump order that

would have seized voting machines, POLITICO (Jan. 21, 2022),

available at https://www.politico.com/news/2022/01/21/readthe-never-issued-trump-order-that-would-have-seized-votingmachines-527572 (linking to draft order).

B. Swan, Read the emails showing Trump allies’ connections to voting machine seizure push, POLITICO (Feb. 9, 2022),

available at https://www.politico.com/news/2022/02/09/trumpemails-voting-machines-election-00007449 (linking to December 16-17, 2020 emails).

reviewed the draft order. Id. On December 17, 2020,

the draft order was changed to a presidential direction to the Secretary of Homeland Security to seize

the voting machines and records, using National

Guard units federalized by the Secretary of Defense.

Id. Also that day, Mr. Flynn called for then-President

Trump to seize voting machines and deploy “military

capabilities” to “rerun an election in each of those

[swing] states.”7

In response, on December 18, 2020, the Army’s

Chief of Staff and Secretary issued a public statement

that “[t]here is no role for the U.S. military in determining the outcome of an American election.”8 That

day, then-President Trump dispatched the Director of

the White House Presidential Personnel Office to inform the Acting Secretary of Defense that the public

statement of these Army officials “was entirely unacceptable.” Jonathan Karl, TIRED OF WINNING, 131,

133-34 (2023). That evening, then-President Trump

met with Flynn, Giuliani, and others for four hours.

Id. at 134. The next day, according to Trump campaign lawyer Jenna Ellis, the Deputy White House

Chief of Staff stated: “[T]he boss is not going to leave

Michael Flynn to Newsmax TV: Trump Has Options to

Secure Integrity of 2020 Election (Dec. 17, 2020) (linking to

video), available at https://www.newsmax.com/politics/trumpelection-flynn-martiallaw/2020/12/17/id/1002139/.

U.S. Army Rejects Using ‘Martial Law’ on Election

Fraud, NEWSMAX (Dec. 19, 2020), available at

https://www.newsmax.com/newsfront/election-fraud-martiallaw-army-no-role/2020/12/19/id/1002337/.

under any circumstances. We are just going to stay in

power.”9

On January 3, 2021, co-conspirator 4, a Justice

Department official, discussed potential use of military force. Indictment, ¶ 81. On January 15, 2021,

Mike Lindell carried notes into a meeting with thenPresident Trump that stated “Insurrection Act now .

. . martial law if necessary.”10 As late as January 17,

2021, Representative Marjorie Taylor Greene texted

White House Chief of Staff Mark Meadows that “several [House members] are saying the only way to save

our Republic is for Trump to call for Marshall [sic]

law.” Id. (emphasis added).11

A. Gardner & H. Bailey, Ex-Trump allies detail effort to

overturn election in Georgia plea videos, WASHINGTON POST

(Nov. 13, 2023), available at https://www.washingtonpost.com/national-security/2023/11/13/trump-georgia-casevideos-overturn-2020-election/ (linking to proffer video).

J. Alemany, J. Dawsey, and T. Hamburger, Talk of

martial law, Insurrection Act draws notice of Jan. 6 Committee,

WASHINGTON POST (Apr. 27, 2022) (emphasis in quoted notes),

available at https://www.washingtonpost.com/politics/2022/04/27/talk-martial-law-insurrection-act-draws-noticejan-6-committee/.

Accord H. Walker, J. Komensky and E. Yucel, Mark

Meadows Exchanged Texts with 34 Members of Congress About

Plans To Overturn the 2020 Election, TALKING POINTS MEMO

(Dec. 12, 2022) (also quoting Jan. 17 text from Rep. Norman to

Meadows), available at https://talkingpointsmemo.com/feature/mark-meadows-exchanged-texts-with-34-members-of-congress-about-plans-to-overturn-the-2020-election.

Moreover, former President Trump’s reply brief in

the District Court relied on the assertion that during

the dispute over the 1876 election, President Grant’s

“official actions [possibly] were criminal,” yet he was

not indicted. D. Ct. Doc. 122, at 11-12. The clear import of that discussion is that presidential immunity

should bar prosecution of a former President who

“trailed greatly in the electoral college” and “dispatched federal troops to states to ensure that” their

electoral votes were favorably awarded. Id. at 11-13.

Hamilton wrote in Federalist No. 85 that the Constitution sought to prevent a one-time “victorious

demagogue” from remaining in power via “military

despotism.”12 Adopting Mr. Trump’s arguments

would encourage Presidents to violate federal criminal statutes by employing the military and other

armed federal personnel to overturn presidential

election results.

REJECTING PRESIDENTIAL IMMUNITY FOR POST-ELECTION USURPATION CRIMES WILL NOT ENABLE IMPROPER PROSECUTIONS.

The D.C. Circuit explained that the elements of a

criminal statute and the “ethical obligations” of federal prosecutors restrain improper criminal prosecutions against a former President. J.A. 37-38. The Indictment in this case illustrates those restraints.

THE FEDERALIST NO. 85 (Alexander Hamilton).

First, many of Mr. Trump’s challenges to election

results took place in courts, where state laws direct

such challenges.13 Mr. Trump and his allies lost approximately 60 court cases brought to overturn his

election defeat. See John Danforth, et al., Lost, Not

Stolen: The Conservative Case that Trump Lost and

Biden Won the 2020 Presidential Election, at 3-5, 1415, 33-35, 44-46, 51-52, 59-63, 68-69 (July 2022) (citing cases), available at www.lostnotstolen.org. Yet

the Indictment mentions only two court filings, both

in Georgia. On November 25, 2020, former President

Trump retweeted about a lawsuit that contained false

accusations of “massive election fraud” in voting machine software and hardware, even though Mr.

Trump allegedly had conceded privately that these allegations were unsupported and “crazy.” Indictment,

¶ 20. And on December 31, 2020, former President

Trump signed a verification of a lawsuit’s allegations

after a co-conspirator allegedly had acknowledged

that Mr. Trump was aware that some of the factual

allegations were false. Indictment, ¶ 30. The Indictment thus mentions only those post-election day

court challenges that included fraudulent lies about

material facts.

Second, the Indictment also shows restraint with

respect to out-of-court activities. The Indictment focuses

allegedly

knowingly-false

factual

See, e.g., Ariz. R.S. §§ 16-672 to 673, 16-675 to 677; Ga.

Code Ann. §§ 21-2-520 to 528; Nev. R.S. §§ 293.407-423; Pa.

Const., art. VII, § 13; 25 Pa. Stat. §§ 3291 (Class II), 3351-3352,

3456, 3471, 3473-3474; Wis. Stat. §§ 9.01(1)-(11).

statements, made by Mr. Trump (and his co-conspirators) to state legislators, Department of Justice officials, and then-Vice President Pence—usually person-to-person. These include:

•

“205,000 more votes than voters in Pennsylvania;”

“more than 30,000 non-citizens had voted in

Arizona;”

“voting machines in various contested states

had switched votes from [Trump] to Biden;”

“more than 10,000 dead people voted in Georgia;”

“thousands of out-of-state voters had cast ballots in Georgia’s election;”

“an illegitimate vote dump in Detroit.”

Indictment, ¶¶ 12, 15, 21, 31, 35, 45, 51, 74, 86, 90,

93.

Third, although a congressional committee made

a criminal referral about Mr. Trump for violating 18

U.S.C. § 2383, see Final Report, Select Comm. to Investigate the January 6th Attack on the United

States Capitol, H.R. Rep. No. 117-663, at 109–11

(2022), this Indictment did not contain that charge. A

conviction under section 2383 would have disqualified Mr. Trump from every federal office. The absence

of a Count under section 2383 demonstrates prosecutorial restraint.

Despite this, Mr. Trump’s amici ask this Court to

create a forever-constitutional rule of presidential

immunity because they assert—incorrectly—that

this prosecution is political. E.g., Alabama Amici Br.

at 3. Under our Constitution, however, “the Executive

Branch—not the Judiciary” decides whom to charge

and when. See United States v. Texas, 599 U.S. 670,

679 (2023). That such powers, even in a case involving a President, reside in an Executive Branch that is

potentially subject to “[p]olitical pressures” reflects

the design of Article II, not a flaw. Morrison v. Olson,

487 U.S. 654, 711 (1988) (Scalia, J., dissenting) (citing

“Teapot Dome . . . and Watergate”). “Under our system of government, the primary check against prosecutorial abuse is a political one.” Id. at 728. The people by election can boot out a President and his or her

party if an administration engages in prosecutorial

abuse. Id. at 728-29. Indeed, as is his right, Mr.

Trump frequently campaigns for voters to replace

President Biden because of the supposed “weaponization” of the Justice Department. In contrast, if this

Court arrogates to itself the executive power of prosecutorial discretion, “there would be no one accountable to the public to whom the blame could be assigned.” Id. at 731 (emphasis in original). That would

violate the separation of powers.

CONCLUSION

This Court should affirm.

Dated: April 4, 2024

Respectfully submitted,

RICHARD D. BERNSTEIN

Counsel of Record

1875 K STREET NW, STE.

100

WASHINGTON D.C. 20006

(301) 775-2064

rbernsteinlaw@gmail.com

TEMIDAYO AGANGAWILLIAMS

ADAM GOULD

ANNA NABUTOVSKY

SELENDY GAY PLLC

1290 AVENUE OF THE

AMERICAS

NEW YORK, NY 10104

MATTHEW W. EDWARDS

1300 19TH STREET NW

WASHINGTON, D.C. 20006

NANCY A. TEMPLE

KATTEN & TEMPLE LLP

209 S. LASALLE STREET,

STE. 950

CHICAGO, IL 60604

APPENDIX

TABLE OF APPENDICIES

Page

APPENDIX A – AMICI NAMES ........................... 1a

APPENDIX A

AMICI NAMES14

Former Members of Congress

Rod Chandler

Barbara Comstock

John Danforth

Mickey Edwards

David F. Emery

Jim Greenwood

John LeBoutillier

Claudine Schneider

Christopher Shays

Peter Smith

Dave Trott

Former Justice Department and White House

Officials

Donald Ayer

John Bellinger III

Stuart M. Gerson

John Giraudo

David Hiller

Peter Keisler

J. Michael Luttig

John M. Mitnick

Gregg Nunziata

See also Appendix A to Amici Brief of Danforth, et al.,

Opposing The Application For A Stay (Feb. 13, 2024). The

views expressed are solely those of the individual amici and

not any organization or employer. Reference to a position is

solely for identification purposes.

Carter Phillips

Alan Charles Raul

Jonathan Rose

Nicholas Rostow

Robert Shanks

Larry Thompson

Stanley Twardy

Wendell Willkie, II

Former Executive Branch Officials

Ambassador Jeff Bleich

Ambassador Judith Beth Cefkin

Thomas M. Countryman

Ambassador Cindy L. Courville, Ph.D.

Eric Edelman

Edward J. Larson

F. Whitten Peters

Trevor Potter

Paul Rosenzweig

Jack Thomas Tomarchio

Christine Todd Whitman

Retired Military

Rear Admiral Katharine L. Laughton, USN

(Ret.)

Major General Randy Manner (Ret.)

Rear Admiral Michael Edward Smith, USN

(Ret.)

Other

Richard Bernstein

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.