Trump keeps saying that trying to overturn a legal election and obstruct the peaceful transfer of power was part of his official duties as president. But that’s not what his lawyers said after the election as you can see by that Supreme Court filing above.
Politico reports that he’s now saying that the election was “long over” and he was acting in his capacity as president:
In the months after the 2020 election, Donald Trump leaned on his campaign to launch ad blitzes and legal challenges to the results, insisting to his supporters that the election was “ a long way from over.” He even told state and federal courts he was suing in his capacity as a political candidate.
Now, in a bid to derail criminal charges, he’s saying the opposite. At least six times in the past two weeks, Trump has declared that the election was “ long over” by the time he began pushing state officials and then-Vice President Mike Pence to overturn his defeat.
It’s a new piece of rhetoric that’s meant to bolster Trump’s assertion of “presidential immunity” from his criminal charges for interfering with the transfer of power. He wasn’t a candidate anymore, Trump’s new theory goes, so he must have been doing his job as president to ensure elections are fair.
But there’s a problem: It flies in the face of the legal arguments Trump made three years ago, during his frenetic push to subvert the election results. Even after the votes had been counted and certified, Trump filed lawsuits contesting the results — and he claimed he was doing so not as the outgoing president, but as a candidate.
It’s even what he told the Supreme Court in a Dec. 9, 2020 brief filed by his lawyer at the time, John Eastman. “He seeks to intervene in this matter in his personal capacity as a candidate for reelection,” Eastman wrote.
The contradiction could cause headaches for Trump and his current lawyers as they now press appellate courts to accept an aggressive immunity theory — a gambit that could hinge on whether Trump’s attempts to overturn Joe Biden’s victory can somehow count as official presidential acts or whether they were nakedly political.
“It certainly has at least some rhetorical force that even Trump has been inconsistent about the role in which he was acting,” said Steve Vladeck, a national security law expert at the University of Texas.
He and other legal experts say that what Trump says on the trail isn’t all that relevant to the legal finding. But I have to assume that filings to the Supreme Court might be.