Hours after Donald Trump sat in a New York courtroom and the first former president in U.S. history to appear as a defendant in a criminal trial, his lawyers filed a brief with the U.S. Supreme Court on Monday renewing his claim for absolute presidential immunity in another criminal case against him.
In a brief answer Responding to Justice Department special counsel Jack Smith’s argument last week that former presidents should not be immune from criminal prosecution, Trump’s lawyers, led by D. John Sauer of St. Louis, reiterated their claim that the framers of the Constitution intended that presidents be immune from prosecution unless they were first impeached and removed from office.
Smith argued last week that because impeachment is inherently political, former presidents must be held legally accountable in a separate, non-political trial in court. Trump’s argument “a radical departure from democracy”, Smith said the standard of absolute immunity would place the president above the law.
Impeachment alone is not enough, Smith said, because a president could avoid conviction in the U.S. Senate simply because of the partisan composition of that chamber.
However, Trump’s lawyers said on Monday that Smith’s argument misunderstands the purpose of impeachment as a check and balance on the executive branch. The process is political and hard to enforce, they wrote.
“That’s the point,” they wrote. “The Founding Fathers required a national political consensus – expressed in a two-thirds majority in the Senate – before authorizing the potentially republic-shattering act of prosecuting a president for his official actions.”
The Supreme Court case is part of Trump’s lawyers’ pretrial efforts to dismiss a federal criminal case accusing Trump of pressuring state officials, the Justice Department and then-Vice President Mike Pence to overturn the outcome of the 2020 election and then allowing a mob of supporters to storm the U.S. Capitol.
Trump, who again the likely Republican candidate The presidential candidate claimed “absolute immunity” from prosecution for his role, saying it was part of his official duties to prevent electoral fraud.
Trump and his allies have filed dozens of lawsuits alleging election fraud, but have failed to provide any evidence that the fraud actually had any impact on the 2020 results.
Trump was acquitted of the same crimes he is accused of in the underlying federal criminal case in a 2021 Senate trial, when only seven of the 50 Republican senators voted with all Democrats to convict. Two-thirds of the Senate must vote for impeachment.
“Offenses may go unpunished”
The framers of the Constitution wanted a forceful executive branch and were willing to accept a certain amount of criminal responsibility for the president, Trump’s lawyers wrote on Monday. The impeachment process is part of that goal, they said.
“When the Founding Fathers created the formidable hurdle of impeachment and conviction, they took the risk that some presidential misdeeds might go unpunished,” they wrote.
Presidents are generally subject to criminal prosecution for private acts, Trump’s lawyers wrote, but they can only be prosecuted for official acts through impeachment proceedings.
Trump has long maintained that his actions on and before January 6, 2021, to attempt to prevent the certification of his November 2020 election defeat were official acts.
Trump’s lawyers also said Monday that federal criminal courts, whose judges are appointed and confirmed by the elected branches of government, are not an apolitical alternative to impeachment, as Smith suggested.
They referred to three other criminal charges against the former president, which they said were “over-politicized.”
“In the face of not one but four hyperpolitical prosecutions against President Trump – in addition to politically motivated civil proceedings – this argument cannot be taken seriously,” they wrote.
The brief came on the first day of Trump’s first criminal trial. In that case in upstate New York, Trump is accused of falsifying business records to conceal hush money payments to a porn star during his first run for the White House in 2016.
He is also charged in Georgia state court with conspiracy to overturn the 2020 election results in that state.
And a grand jury in a federal court in South Florida indicted him on charges of misusing and storing confidential documents from his time in office in unsecured areas.
Trump has tried to exploit the criminal charges to his political advantage by to emphasize his message that he is in the sights of a corrupt system.
Oral hearing soon
The Trump team’s response was the last statement from either party before oral arguments scheduled for April 25.
Trump will not be present at the Supreme Court for the closing arguments, as he is expected to appear at his trial in New York. Judge Juan Merchan, who is overseeing the case, denied Trump’s request to be absent that day to attend the Supreme Court hearing. According to reports.
The case came to the Supreme Court after Trial Judge Tanya Chutkan, a federal judge for the District of Columbia, denied Trump’s motion to dismiss the charges in December on grounds of presidential immunity.
Trump appealed the ruling, but A federal appeals court unanimously confirmed Chutkan’s decision in February.
The trial has been suspended pending an appeal in the immunity motion.
