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Jack Smith’s Latest Filing Hammers Trump’s Immunity Defense, Legal Experts Say

A three-judge panel of the D.C. Circuit will hear arguments in Trump’s election interference case on January 9.

Former President Donald Trump delivers remarks during a rally at Ted Hendricks Stadium at Milander Park on November 8, 2023, in Hialeah, Florida.

Donald Trump is poised to lose his presidential immunity appeal in his election interference case, an ex-associate White House lawyer in the former president’s administration says.

Trump is accused of four felonies related to his efforts to overturn the 2020 presidential election and his role in the Capitol attack on Jan. 6, 2021. His lawyers have tried to invoke presidential immunity in an effort to have the federal case thrown out, claiming he has “absolute immunity” from criminal prosecution for actions he took while in office.

“So, [special counsel] Jack Smith has a winner on this one, right?” Jim Schultz said during an interview with CNN on Monday, noting that the case will appear before the D.C. Circuit Court, which he added is widely understood among the legal community to be the “the warm-up act for the Supreme Court.”

Smith, in a rare move, last month petitioned the Supreme Court to circumvent the D.C. Circuit and deliver an expedited ruling on the immunity question. The high court, however, rejected the request, offering no explanation for the decision.

The three-judge panel of the D.C. Circuit will hear arguments in the case on Jan. 9 after receiving the briefs filed by both parties.

“I think in this instance, the D.C. Circuit Court is going to act swiftly, and I think they’re going to knock down this immunity claim, you know, very swiftly,” Schultz said in his interview.

In a court filing Saturday, Smith’s office urged the federal appellate court to reject Trump’s immunity claim, arguing that it “threatens to license presidents to commit crimes to remain in office,” according to The Messenger.

The 82-page brief asserts that U.S. District Judge Tanya Chutkan was right in upholding the charges in an early December decision, and argued Trump’s appeal should be dismissed. It responds to a filing submitted to the D.C. Circuit by Trump’s legal team last week, which argued that the charges against the former president are “unlawful and unconstitutional” and called on the appellate court to return the case to Chutkan “with instructions to dismiss the indictment with prejudice.”

The former president is “wrong” in claiming he must be “cloaked with absolute immunity from criminal prosecution” for illicit behavior while serving as president, the federal prosecutors declared.

“Separation of powers principals, constitutional text, and precedent all make clear that a former President may be prosecuted for criminal acts he committed while in office — including, most critically here, illegal acts to remain in power despite losing an election,” they wrote in the brief.

Trump’s “sweeping immunity claim threatens to license presidents to commit crimes to stay in office,” prosecutors added. “The Founders did not intend and would never have countenanced such a result.”

CNN legal analyst Norm Eisen argued that the brief was a strong move against Trump’s efforts to delay the criminal proceedings by putting forth the immunity argument.

“Jack Smith hammers him with all the weaknesses of that claim in this new filing,” Eisen said. “There’s nothing in the Constitution. Not its text, its structure, its history. There’s no precedent, there’s no case law for this kind of absolute immunity.”

Eisen believes that Smith’s filing will not only extinguish the presidential immunity claim but hasten the debate so his federal election interference case against Trump, which is stayed until the question is resolved, can progress.

“Trump knows he’s going to lose,” Eisen explains. “He’s playing for delay, trying to push this out as long as possible.”

If Trump were to succeed in delaying the trial past November and reclaiming the White House, he could order the Justice Department to throw out the case. Eisen, however, believes Smith “has the upper hand” in the matter.

“Smith is telling the D.C. Circuit, ‘Hurry up, decide fast,'” he said, later noting that the case could begin early this year if the Supreme Court refuses to consider the case after the federal appellate court’s decision.

The Supreme Court has “very often refused to consider…Trump’s request for relief on Democracy-related issues,” Eisen said. “If that happens, and it’s wrapped up, then this trial, I don’t think it can go March 5, but it can go in March.”

Former Mueller prosecutor Andrew Weissman called Smith’s Saturday filing a “classic Dreeben,” referencing former Deputy Solicitor General Michael Dreeben, another Mueller investigation alum that Smith brought on his team to press the top court, and noted that the brief was meant to be read by the Supreme Court justices.

“Let’s just say this brief is classic Dreeben (ie a tour de force, and VERY geared to S Ct review),” Weissman wrote on X, formerly Twitter.

“Smith slyly notes that Trump himself previously told the [Supreme Court] in a case where he sought (unsuccessfully) immunity from a state grand jury subpoena that he [would] NOT be immune post-Presidency and [would] not be thereafter ‘above the law,’ Weissmann added in a second post.

Conservative attorney George Conway took note of another phrase in Smith’s filing.

“Also: ‘a president who sells nuclear secrets to a foreign adversary,'” Conway tweeted, quoting the brief. “Interesting choice of hypotheticals.”

MSNBC legal analyst and former federal prosecutor Glenn Kirschner is also confident that Smith will add co-defendants to his election interference case against Trump.

During an appearance on Brian Tyler Cohen’s YouTube show “The Legal Breakdown” in late December, Kirschner predicted that Smith will “absolutely” charge the six, currently unindicted co-conspirators in the case, which includes “people like Mark Meadows, and Rudy Giuliani, and Sidney Powell, and John Eastman, and Kenneth Chesebro.”

Former White House Chief of Staff Meadows, ex-New York City Mayor Giuliani and attorneys Powell, Eastman and Chesebro are also among the co-defendants in Fulton County, Ga. District Attorney Fani Willis’ sweeping racketeering case, which charges its 19 defendants for actions related to efforts to overturn the 2020 election results in Georgia.

Powell and Chesebro have brokered plea deals with Fulton County prosecutors, skirting prison and agreeing to fully cooperate with Willis and her team. Meadows, Giuliani and Eastman, however, have not made plea deals in the case.

“You have heard me say before, I am not a betting man. I am not a high roller; one dollar is my betting limit,” Kirschner told Cohen. “I would bet the full buck on those six unindicted co-conspirators being indicted…. [Smith] will absolutely, in my opinion, indict those six, though perhaps, he’s waiting for Donald Trump’s trial to run its course first.”

Cohen mentioned that no members of Congress have been criminally indicted for their efforts to help Trump’s alleged bid to subvert his electoral defeat. Kirschner believes that they should be.

“I think the Department of Justice is falling down on the job…. There are insurrectionists in Congress who have not been held accountable for their crimes,” Kirschner said. “Some of them are still in Congress trying to kill us from within, kill our democracy. And I wish I had an answer to the question: Why haven’t they been dealt with.”

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