Special Counsel Jack Smith has laid out his arguments before the U.S. Supreme Court, asking the high court to reject former President Donald Trump’s claims of sweeping presidential immunity.
Smith’s team of prosecutors said Trump’s position that he can’t be prosecuted for official acts taken while president lacked support from the U.S. Constitution and presidential history.
In what could be the most-watched case in front of the Supreme Court this term, federal prosecutors said even if Trump is entitled to some immunity for officials acts, some of his actions were private in what prosecutors allege amounts to election interference.
“The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law,” prosecutors wrote in a 66-page brief. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law – including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”
In Washington, Smith’s team charged Trump with four federal counts related to contesting the 2020 election and the storming of the U.S. Capitol building on Jan. 6, 2021. The charges are conspiracy to obstruct an official proceeding, conspiracy to defraud the United States, obstruction, and conspiracy against the right to vote and to have one’s vote counted, according to the indictment. Trump has pleaded not guilty to all charges.
Smith further argued that Trump’s claims that he can’t be prosecuted unless impeached and convicted wouldn’t hold up. Trump was impeached twice in the House, but never convicted by the Senate.
Smith said the Impeachment Judgment Clause “does not establish a rule requiring a President’s impeachment and conviction before a former President may be prosecuted.”
“The text of the clause clarifies that an impeached and convicted President may nevertheless be prosecuted and thus expressly recognizes that former Presidents are subject to federal criminal prosecution,” the team wrote in the brief.
They noted that impeachment is a political function.
“Impeachment is an inherently political process, not intended to provide accountability under the ordinary course of the law,” prosecutors wrote. “Criminal prosecution, in contrast, is based on facts and law, and is rigorously adjudicated in court. Adopting petitioner’s position would thwart the ordinary application of criminal law simply because Congress, in administering the political process of impeachment, did not see fit to impeach or convict.”
Smith’s team also turned to history to make their case, including former President Richard Nixon. Nixon resigned from office in 1974 before he could be impeached over a break-in at the offices of the Democratic National Committee during the 1972 campaign, the heart of the Watergate scandal. After Nixon’s resignation, Vice President Gerald Ford assumed the presidency and pardoned Nixon.
“The closest historical analogue is President Nixon’s official conduct in Watergate, and his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution,” prosecutors argued.
They also said that just because no president has been prosecuted doesn’t mean presidents enjoy immunity.
“The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability,” prosecutors wrote. “It instead underscores the unprecedented nature of petitioner’s alleged conduct. And none of the dissimilar historical examples on which petitioner relies suggests otherwise.”
Prosecutors argued that even if Trump has immunity for some official acts, the criminal conduct he’s charged with also involved private acts.
“Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment,” they wrote.
A federal appeals court dealt Trump’s defense a major blow in February when it said he doesn’t have presidential immunity to protect him from charges of election interference in his Washington D.C. case.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the three-judge panel wrote in a unanimous decision. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
Two of the judges were appointed by President Joe Biden – J. Michelle Childs and Florence Pan – and one, Karen LeCraft Henderson, by George H.W. Bush.
The Washington D.C. case remains on pause while awaiting a decision from the Supreme Court on Trump’s immunity claims. Oral arguments are scheduled for April 25.
Trump has said the criminal and civil cases he faces amount to election interference and were designed by Democrats to keep him out of the White House.
