Defense reply raises stakes in Peters appeal, asks court to order immediate release

By Jen Schumann | Rocky Mountain Voice

With oral arguments just days away, Tina Peters’ legal team has raised the stakes in her appeal, filing a reply that no longer asks the Colorado Court of Appeals simply to weigh jurisdiction—but to declare it already lost and order her immediate release.

The reply, filed on the Jan. 8 deadline, directly challenges the Attorney General’s position that the court retains authority over the case and frames Peters’ continued imprisonment as unconstitutional. 

Her attorneys explicitly say the appellate court should find that it lacks jurisdiction and that Peters “must be released from custody forthwith.”

The filing follows Peters’ Dec. 23 motion challenging the court’s authority to proceed and the state’s Jan. 5 response rejecting both the presidential pardon and Supremacy Clause arguments. 

Together, the three filings now place the Court of Appeals at the center of a dispute that has shifted from procedural sequencing to the limits of state power.

From jurisdiction question to release demand

Peters’ earlier motion asked the court to determine whether it had jurisdiction to hear her appeal in light of President Trump’s Dec. 5 pardon and federal election law. The reply goes further.

Rather than framing jurisdiction as an open question, the defense asserts that the trial court never had authority to prosecute Peters in the first place—and that the Court of Appeals cannot cure that defect by continuing to adjudicate the case.

The reply reframes that request as a matter of constitutional necessity rather than procedural discretion. Peters’ attorneys argue that if jurisdiction was lacking from the outset, neither the trial court nor the Court of Appeals has authority to maintain her custody, even while the underlying appeal continues.

Supremacy Clause reframed as a jurisdictional bar

The reply takes a harder line on the Supremacy Clause, arguing it strips state courts of authority altogether. Peters’ attorneys contend that her actions—imaging Mesa County’s election systems ahead of a 2021 software update—were taken to comply with federal law requiring the preservation of election records under 52 U.S.C. § 20701.

Where the state argued the Supremacy Clause operates like a defense that can be raised or waived during a case, the reply frames it as a hard limit on state power. Peters’ attorneys argue that if her actions were taken to comply with federal law, state courts lack authority not only to punish her for them, but even to rule on whether immunity applies at all.

The reply cites a line of federal cases, including In re Neagle and Wyoming v. Livingston, to argue that Supremacy Clause immunity exists to prevent prosecutions in “hostile state forums” and must be adjudicated, if at all, in federal court.

The defense reply quotes federal appellate decisions addressing Supremacy Clause immunity and hostile state forums.

That position directly contradicts the Attorney General’s reliance on Wood v. People, which the state cited to argue that immunity is a question courts may decide as part of a case—while Peters’ attorneys say Supremacy Clause immunity operates differently, cutting off state authority entirely.

Same cases, opposite conclusions

The reply also takes aim at the Attorney General’s use of Supreme Court precedent, arguing that the state misreads the very cases it relies on.

Both sides cite Young v. United States, Ex parte Grossman, Gamble v. United States and other foundational decisions. Where the state points to those cases as confirmation that presidential pardon power is confined to federal offenses and that states retain authority to enforce their own criminal laws, the defense reads them differently—arguing they show the president’s power can extend further when federal interests are implicated and that state prosecutions must give way in those circumstances.

The reply argues that early uses of the term “United States” referred to the states collectively rather than the federal government alone and that post–Civil War interpretations narrowed the pardon power in ways inconsistent with the Framers’ understanding.

In the defense’s telling, Grossman does not limit presidential pardon power, but expands it—showing that a president may pardon conduct even when it is not spelled out in a federal criminal statute, so long as it involves a federal interest.

The Attorney General’s Office, by contrast, argued that the same cases confirm a clear boundary between federal and state offenses and that no president has ever exercised pardon power over state convictions.

How the defense and the state rely on the same court cases to argue opposite limits on presidential power and state authority. Graphic: RMV.

Pardon and federal election law braided together

The reply presses the two theories closer together, linking the pardon argument more directly to federal election law and Supremacy Clause immunity.

Peters’ attorneys argue that federal election statutes incorporate state election law and that violations of state election rules during federal elections can constitute offenses against the United States. From that premise, they contend that presidential pardon authority applies and that Supremacy Clause immunity bars state punishment in the meantime.

Building on arguments raised in the Dec. 23 motion, the reply presses the Nov. 2025 proclamation more forcefully, arguing it operates independently to vacate Peters’ convictions and was intended to restore national uniformity when state prosecutions conflict with federal interests.

The state has maintained that neither proclamation reaches state convictions and that the court should proceed with the appeal without delay.

A court with options—and a narrowing window

The Court of Appeals does not have to wait for oral argument on Jan. 14 to act. It can rule now, hold the question until argument, or take a narrower step on jurisdiction—any of which would determine whether Peters remains in custody.

In the reply, her attorneys urge the court to release her, arguing she should not remain imprisoned if jurisdiction never existed.