President-elect Trump’s motion to dismiss District Attorney Alvin Bragg’s 34 hush money convictions debuts a novel argument — that New York’s case against the 47th president is not only unconstitutional, but undemocratic.  

The motion, filed to Judge Juan Merchan by Trump’s attorneys, Todd Blanche and Emil Bove, clocks in at nearly 80 pages and is the pièce de résistance of the president-elect’s theory of the case. Its kitchen-sink approach comprises everything from accusations that Judge Merchan is biased to the argument that President Biden’s pardon of his son Hunter throws into sharp relief the biased nature of the prosecutions of Trump.

Mr. Bragg has until December 9 to draft his response urging Judge Merchan to deny Trump’s motion. The district attorney has already shown that he is undeterred by Trump’s victory, and would like the judge to explore “various non-dismissal options” that would freeze the case until Trump is no longer president, in 2029. He vows to fight Trump’s effort to vacate the guilty verdicts brought in by a New York jury.  

Messrs. Blanch and Bove — both nominated by Trump to take top roles in the Department of Justice — appear to have formulated a fresh contention in the wake of Trump’s electoral victory. They write: “The Commander in Chief is ‘more representative’ of the nation than elected state prosecutors, such as DA Bragg, whose constituencies are local and not country wide.” 

Trump’s team adds that “burdening the Presidency with a biased prosecution by a local prosecutor would be not only unconstitutional, but also unbearably undemocratic to the people of this country.”

Trump cites an unlikely source: Justice Stephen Breyer, who was appointed to the Nine by President Clinton and was for decades a liberal lion on the bench. In Clinton v. Jones, which established that presidents are not immune from civil suits while in office, Justice Breyer wrote that the president’s “conduct embodies an authority bestowed by the entire American electorate.”

The president-elect also summons another high court case, Myers v. United States, from 1926. That decision established the president’s ability to remove executive branch officials without the prior approval of the Senate. The court explained that the “President elected by all the people is rather more representative of them all than are the members of either body of the Legislature, whose constituencies are local, and not countrywide.”

The Constitution ordains that the “executive Power shall be vested in a President of the United States of America.” The Supreme Court has taken that to mean that all of the power resides there, a precondition for accountability to voters. The Presidential Transition Act mandates that “once a man is President-elect, he is not the Democratic President-elect; he is not the Republican President-elect; he is the President-elect of the people of the United States of America.”   

Special Counsel Jack Smith’s retreat from his two prosecutions of Trump is also cited as evidence that democratic imperatives require the dismissal of Mr. Bragg’s case. Mr. Smith’s requests for voluntary dismissal were mandated by the Office of Legal Counsel, which determined that there is a “categorical” prohibition against prosecuting a sitting president. That determination is “binding” on all federal prosecutors, but not state ones.

When the OLC last considered the question, in 2000, it determined that it would be crosswise with the constitutional construct to “permit an unelected grand jury and prosecutor effectively to ‘remove’ a President by bringing criminal charges against him while he remains in office.” The OLC explains that the Framers envisioned only impeachment as the means to remove a president.

The OLC avers that the prosecution of a sitting president would ensure that the “most important decisions in the process of criminal prosecution would lie in the hands of unaccountable grand and petit jurors, deliberating in secret, perhaps influenced by regional or other concerns not shared by the general polity.”

Mr. Bragg could respond that, like Trump, he was elected to the office he holds, just as another prosecutor pursuing Trump, District Attorney Fani Willis of Fulton County, was re-elected to hers last month. The district attorney campaigned on a vow to hold Trump “accountable” and bragged that he had sued the Trump administration “more than a hundred times.’”  

The New York prosecutor faces re-election next year, and will need to defeat at least one challenger — a lifelong Democrat now running as a Republican, Maud Maron. Trump’s brief asserts that ​​Mr. Bragg’s “failure to protect this City from pervasive violent crime frightens, threatens, and harms New Yorkers on a daily basis.”