Trump first raised the immunity issue in his Washington, DC criminal case, which involves allegations that he worked to overturn the results of the 2020 election in the run-up to the violent riot by his supporters at the US Capitol on January 6, 2021.
The hush money case centres on allegations that Trump falsified his company’s internal records to hide the true nature of payments to his former lawyer Michael Cohen, who helped Trump bury negative stories during his 2016 presidential campaign. Among other things, Cohen paid porn actor Stormy Daniels $130,000 to suppress her claims of an extramarital sexual encounter with Trump years earlier.
Trump’s lawyers argue some evidence Manhattan prosecutors plan to introduce at the hush money trial, including messages he posted on social media in 2018 about money paid to Cohen, were from his time as president and constituted official acts.
Trump pleaded not guilty last year to 34 felony counts of falsifying business records. He has denied having a sexual encounter with Daniels, and his lawyers argue the payments to Cohen were legitimate legal expenses and not part of any cover-up.
A federal judge last year rejected Trump’s claim that allegations in the hush money indictment involved official duties, nixing his bid to move the case from the state court to the federal court. Had the case been moved to the federal court, Trump’s lawyers could’ve tried to get the charges dismissed on the grounds federal officials have immunity from prosecution over actions taken as part of their official duties.
“The evidence overwhelmingly suggests that the matter was a purely a personal item of the president — a cover-up of an embarrassing event,” US District Judge Alvin Hellerstein wrote last July. “Hush money paid to an adult film star is not related to a president’s official acts. It does not reflect in any way the colour of the president’s official duties.”
Trump’s lawyers appealed Hellerstein’s ruling, but dropped the appeal in November. They said they were doing so with prejudice, meaning they couldn’t change their minds.
The question of whether a former president is immune from federal prosecution for official acts taken in office is legally untested.
Prosecutors in the Washington, DC case have said no such immunity exists and, in any event, none of the actions Trump is alleged to have taken in the indictment charging him with plotting to overturn the 2020 presidential election after he lost to Democrat Joe Biden count as official acts.
The trial judge in Washington and a federal appeals court have both ruled against Trump, but the High Court agreed last month to give the matter fresh consideration — a decision that delays the federal case in Washington and injects fresh uncertainty as to when it might reach trial.
