Former President Donald Trump on Tuesday again called on the US Supreme Court to drop the charges against him, citing the near-total immunity of presidents from criminal prosecution.
Just before the deadline to file briefs in the case, 18 Republican-led states also filed an amicus curiae brief on Tuesday urging the Supreme Court to overturn the lower courts’ decision and grant Trump broad immunity. Oral arguments on the immunity issue are scheduled for April 25 before the Supreme Court, and federal district court proceedings have been stayed until the Supreme Court issues a ruling.
Trump’s lawyers, led by D. John Sauer of St. Louis, in a 52-page letter argued that the framers of the Constitution intended a forceful executive with virtually no criminal liability on the part of the judicial system and that this was part of a “234-year-long unbroken tradition” of not prosecuting presidents for acts committed while in office.
The judges should take this tradition into account and dismiss the federal lawsuit against Trump – now the likely presidential candidate of the Republican Party – of conspiring to overturn his 2020 re-election defeat, they wrote.
U.S. Department of Justice Special Counsel Jack Smith led an investigation into Trump that led to charges that the president was at the head of a multi-party conspiracy to prevent him from leaving office.
But Trump’s lawyers argue that these charges should be dropped due to the doctrine of “absolute presidential immunity,” which is necessary for presidents to exercise their powers properly.
“The President cannot do his job, and the office of the President itself cannot maintain its vital independence, if he is prosecuted for his official actions after leaving office,” the lawyers wrote in the first paragraph of their brief.
This view is consistent with the drafters of the Constitution’s view of the presidency, they said.
“Even if some degree of presidential abuse of power, which is not present in this case, were to go unpunished, that risk is enshrined in the Constitution,” Trump’s lawyers wrote.
“The Founding Fathers believed that protecting presidential independence was worth the risk that some presidents might escape punishment in borderline cases. They were not willing to burn down the presidency itself in order to catch every single suspected wrongdoer.”
Impeachment proceedings
The only exception to absolute immunity would be a president who is impeached by the House of Representatives and convicted in the Senate, Trump’s lawyers said.
Trump was impeached twice by the House during his time in office but acquitted in two Senate trials that required a two-thirds majority to convict. A majority of senators – including seven Republicans who joined all Democrats – voted in 2021 to convict him on charges similar to those he faces in criminal court related to his efforts to rig the 2020 election results.
Trump’s lawyers argued, as they have in previous filings, that federal courts should never be allowed to review the conduct of presidents who have not been convicted in impeachment proceedings.
They asked the court to reject the argument that a further exception to presidential immunity could also be made for criminal charges arising from the president’s desire to remain in power.
“Because virtually all of Presidents’ first-term actions are based at least in part on reelection, this exception to immunity would quickly undermine the rule,” they wrote.
Whether or not to prosecute a president is essentially a political act, Trump’s lawyers said.
“This observation applies to former presidents as well – and it applies especially to a former president who is the leading candidate to succeed the incumbent who is impeaching him,” they wrote.
Trump has secured enough delegates to win his party’s nomination and face President Joe Biden in a rematch of the 2020 election this fall.
A decision of the Court of Appeals for the District of Columbia on February 6 Maintenance a lower court Verdict against Trump pointed out that the indictment alleges a criminal act arising from an attempt to remain in office unlawfully.
Trump appealed this decision to the Supreme Court.
Red states support Trump
The attorneys general of Alabama, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia signed a brief filed with the court on Tuesday accusing the government of politically motivated timing of the 2020 election interference case.
“After waiting 30 months to impeach President Trump, the Special Counsel has demanded extreme expeditiousness from every court at every stage of the proceedings. His only stated reason, ‘public interest,’ is so thin as to be almost transparent,” the attorneys general wrote.
In the 54-page Amicus Curiae BriefState officials claim that the prosecutors’ “failure to explain their extraordinary haste suggests a troubling answer: that the timing of the prosecution is designed to inflict maximum harm on President Biden’s political opponent before the November 2024 election.”
The attorneys general argued that the threat of liability could distort presidential decision-making and lead to poorer job performance, citing several cases, including Clinton v. Jones in 1997.
The attorneys general, led by Alabama Attorney General Steve Marshall, also accuse the lower courts of “mishandling” concerns that they have opened the proverbial “floodgates” to future partisan prosecutions. Marshall has played a leading role in developing a number of legal arguments The changes in the election rules are likely to give Trump a boost.
“The trial court also underestimated the risk of a ‘flood of politically motivated prosecutions,’ on the grounds that ‘this is the first time since the founding that a former president has been indicted in federal court,'” the attorneys general wrote, citing the appeals court.
“Blatantly missing is the fact that this case is the second of two federal trials against President Trump, who is also on trial in two states. How can the ‘risk’ possibly ‘seem low’?”
State officials pointed to state and civil lawsuits against Trump in Georgia and New York as evidence that the 2020 election interference case “is not the only one raising concerns about partisanship.”
Another view from Ohio, Alaska and Wyoming
Another brief, signed by only three Republican attorneys general, asked the court to enforce a more convoluted legal standard that still provides broad immunity on a sliding scale.
The three Republican attorneys general told the U.S. Supreme Court that the justices should consider presidential immunity in the broadest sense as the court hears Trump’s attempt to dismiss criminal charges related to his efforts to overturn the 2020 election.
Ohio Attorney General Dave Yost led a compact to the court, which was also signed by Alaska Attorney General Treg R. Taylor and Wyoming Attorney General Bridget Hill. The Republicans argued not for absolute immunity but for a two-part test that would still allow for broad immunity.
Yost, Taylor and Hill argued over legal theory rather than the specifics of Trump’s case, saying the justices must strike a balance between the need for broad presidential discretion in exercising his official powers and the need for accountability of a criminal public official.
“Our constitutional structure provides for very broad but not unlimited presidential immunity,” they wrote.
The three attorneys general proposed a two-step test to determine a claim for presidential immunity.
First, the courts must determine how closely the alleged actions are tied to the president’s core constitutional duty, it said. For example, presidents should be given more latitude in conducting foreign affairs than in investigating a political rival, since conducting foreign affairs is a core constitutional duty.
Courts should also determine the “urgency of the situation surrounding” a president’s alleged crimes, they said. For example, a president’s seizure of the property of political opponents should be viewed differently than the seizure of property during a war.
The attorneys general did not comment on how the courts should rule in the Trump case, instead suggesting that the Supreme Court simply announce that it is adopting the two-part test and leave it to the trial court to decide how to apply it to the facts of the case.
A test approved by the Supreme Court would facilitate the court conduct an unprecedented trial and could also reassure the public that the process would be apolitical, they said.
Other arguments
Several other interested parties filed briefs on Tuesday, the final day for so-called amicus curiae briefs in Trump’s case before the Supreme Court.
The Republicans’ campaign arm in the Senate, the National Republican Senatorial Committee, headed by Steve Daines of Montana, wrote that the Court should apply the principle of absolute immunity, fearing that a different decision would trigger a cycle of political prosecutions for any future president.
“The DC Circuit’s opinion is like a loaded gun on the table that future prosecutors can now use against presidents (and former presidents) of all political persuasions,” the NRSC wrote. “The DC Circuit seems to believe that partisan actors can resist the temptation to use this weapon against their political enemies; anyone who pays even a passing attention to American politics knows better.”
Mark Meadows, Trump’s White House Chief of Staff during the 2020 election and his subsequent efforts to overturn the results, wrote to the Court, asking it to affirm in this case the legal principle that grants lower-ranking federal officials immunity from state prosecution.
Meadows, a former member of the U.S. House of Representatives from North Carolina, is one of Trump’s co-defendants in Georgia state charges related to efforts to overturn the 2020 election.
