Donald Trump’s belief that he is entitled to absolute immunity for his actions as president would radically alter U.S. democracy and give presidents unprecedented power more akin to that of monarchs than elected heads of state, U.S. Department of Justice Special Counsel Jack Smith wrote in a response to the U.S. Supreme Court behind schedule Monday.
Smith’s 66-page meagerand thus answered Trump’s Fight before the Supreme Court that federal criminal charges against him for attempting to overturn the 2020 presidential election should be dropped because he was president at the time, calling Trump’s claim a “radical proposal” that would overturn the core principles of U.S. democracy.
Trump’s argument that a president’s conduct while in office cannot be prosecuted “would exonerate the president from virtually all criminal offenses – even crimes such as bribery, murder, treason and sedition,” Smith wrote.
At Oral statements In January, Trump’s lawyer D. John Sauer told the District of Columbia Court of Appeals that his team’s theory of broad presidential immunity would mean that a president could not be prosecuted for ordering SEAL Team 6 to assassinate a political rival unless Congress first impeached and removed him from office.
In Trump’s brief to the court last month, his lawyers put forward the theory of “absolute presidential immunity,” which states that a president cannot be criminally prosecuted for acts committed in office.
The only exception to this rule is a president who has been impeached and removed from office, Trump’s legal team argues.
Trump was impeached by the Democratic-dominated U.S. House of Representatives on charges of inciting an insurrection on January 6, 2021, when a mob of his supporters attempted to block the certification of the 2020 election results. An evenly divided Senate fell tiny of the two-thirds majority needed to convict, although seven Republicans joined all Democrats and independents in voting to convict.
Trump is the likely Republican candidate for the presidency this year.
Smith said Monday that Trump’s sweeping immunity argument places too much faith in Congress’s conduct of an inherently political process to achieve criminal accountability.
The impeachment process is “not intended to hold perpetrators accountable through the normal legal process,” he wrote.
Historical examples
The prosecutor also took aim at the historical examples Trump cited to support his immunity claim.
The examples cited by Trump either related only to sitting presidents and not former presidents, or were used to dismiss civil lawsuits but not criminal charges, Smith said.
In contrast, the Watergate scandal was an example of how presidents have long been aware that they are subject to criminal justice even after they leave office.
By offering a pardon, President Gerald R. Ford implied that former President Richard Nixon could be held liable for criminal conduct. And by accepting the pardon, Nixon supported that view, Smith said.
Every president since George Washington has understood that he could be prosecuted and punished, Smith said.
The U.S. legal system is based on the principle that no one, regardless of their function, is above the law, Smith said.
Another interpretation, including that of Trump and his legal team, would make the presidency indistinguishable from a monarchy, Smith wrote. That view “would have been anathema to the framers” of the Constitution, who “established a system of checks and balances to avoid the dangers of a monarch above the law.”
Criminal charges are not civil lawsuits
Smith also argued that Trump’s claim that rejecting a broad interpretation of presidential immunity would justify political prosecutions against any future former president was unfounded.
Protection from civil lawsuits may be appropriate, Smith said, citing Supreme Court precedent.
But federal charges, which can only be brought by the Justice Department and are subject to “institutional standards of impartial prosecution,” are far more tough to abuse, Smith says.
There are “strong safeguards against baseless prosecutions,” Smith said.
Smith’s brief was a response to Trump’s argument last month in which the former president put forward his theory of “absolute presidential immunity.”
Trump’s lawyers said presidents need immunity from prosecution in order for their office to function. The framers of the Constitution were willing to trade a president’s criminal responsibility for the independence of his office, Trump’s team argued. A similar ban on civil lawsuits must also apply to indictments by a federal grand jury.
Next
Trump has until the end of the day, April 15, to respond to Smith’s brief.
The oral hearing on the immunity issue is scheduled for 25 April.
The case before the Supreme Court is intended to decide a pretrial issue in a federal case relating to Trump’s involvement in the attack on the U.S. Capitol on January 6, 2021.
Trump asked the court to dismiss the charges on the grounds of his presidential immunity. Both the judge and the DC Circuit rejected that argument.
In their brief on Monday, prosecutors asked the court to quickly issue a statement on the case. The start of the trial was postponed for months while the question of immunity was still pending.
Less than seven months before Election Day, the four criminal cases against Trump increasing conflict with his election campaign plan as he seeks a return to the White House.
A separate criminal trial against Trump – on charges of falsifying business records in New York State – is scheduled to begin on April 15.
