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Jack Smith Tells SCOTUS to Reject Trump’s “Radical” Presidential Immunity Claims

Oral arguments before the Supreme Court are set to take place on April 25.

Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former President Donald Trump on August 1, 2023, in Washington, D.C.

On Monday evening, Department of Justice (DOJ) special counsel Jack Smith filed a briefing on behalf of the United States Government, urging the Supreme Court to reject former President Donald Trump’s claims of presidential immunity.

Trump faces four federal counts from Smith regarding his attempts to overturn the results of the 2020 presidential election, which he lost to President Joe Biden, as well as his actions and statements that incited the January 6, 2021, attack on the U.S. Capitol building.

Lower courts have rejected Trump’s presidential immunity claims that former presidents cannot legally be charged for crimes after they leave the White House. Per Trump’s arguments, if presidents knew they could later be charged for actions they take in office, it would stifle their ability to manage their branch of government.

Legal experts and scholars have rejected those claims, noting that such immunity would allow presidents to engage in a number of unlawful acts without repercussions, particularly if Congress is unwilling or unable to impeach them.

Smith’s filing expressed similar concerns, noting that Trump’s “radical suggestion” would “free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition.”

“Petitioner asserts a novel and sweeping immunity from the federal criminal laws that govern all citizens’ conduct,” the filing from the DOJ states.

“Under this Court’s established separation-of-powers framework, a claim of presidential exemption from a statutory limitation requires the President to identify an Article II basis that precludes the application of that congressional act,” the filing states. Yet “no presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges.”

“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” the brief from Smith states, adding that, “A bedrock principle of our constitutional order is that no person is above the law — including the president.”

The filing from Smith’s legal team notes that “the closest historical analogue” to Trump’s actions is the conduct of disgraced former President Richard Nixon and the scandal following the 1972 Watergate hotel break-in.

“Since Watergate, the Department of Justice has held the view that a former President may face criminal prosecution, and Independent and Special Counsels have operated from that same understanding. Until petitioner’s arguments in this case, so had former Presidents,” the filing says.

Smith largely rejected Trump’s claims that his actions on January 6 amounted to an “official act” in his capacity as president. But even if Trump’s claims were true, it doesn’t mean he shouldn’t face charges, Smith noted.

“Petitioner’s use of official power was merely an additional means of achieving a private aim — to perpetuate his term in office — that is prosecutable based on private conduct,” the DOJ concludes.

Much to the dismay of legal scholars who said the Supreme Court shouldn’t even entertain arguments from Trump, the justices approved a writ of certiorari request from the former president in late February. Oral arguments for the case are set to begin on April 25.

The Court asked both sides to answer a constitutional question regarding Trump’s immunity claims:

Whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

There is no set time for the Court to decide on the question once arguments are over. A ruling could come right away, or as late as June, when the regular slate of opinions are typically released by the Court.

If the justices release their opinion within a month of oral arguments, it could mean a trial might commence sometime this fall, in the midst of the presidential campaign season. If they wait until June, however, it could delay a trial until after the election — if that happens, and if Trump, the presumptive Republican nominee for president, wins the election, he could appoint a new attorney general who would drop all charges against him in the case.

Polling indicates that most Americans side with Smith’s view that presidential immunity is not an absolute concept that protects former presidents from any and all prosecutions after they leave office.

According to a Politico/Ipsos poll published in mid-March, 70 percent of Americans disagreed with Trump’s arguments, believing that former presidents should not be immune from prosecutions relating to crimes they committed while in office. Only 11 percent of respondents said that a former president should have absolute immunity from prosecution.

When the Supreme Court announced that it would hear the case, Joyce Vance, a former federal prosecutor and a law school professor at the University of Alabama, explained that Trump’s arguments must be rejected.

“This isn’t a hard case. The argument Trump makes — that presidents are entitled to absolute immunity from criminal prosecution for anything they do in office, specifically, for trying to steal an election — has to be a loser,” Vance said at the time. “If not, our claim to be a democracy is no longer viable.”

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