Special counsel Jack Smith pushed back on former President Donald Trump’s claim that he should be cloaked with absolute immunity from criminal prosecution, arguing in a new filing Saturday that the sweeping assertion “threatens to license Presidents to commit crimes to remain in office.”
Smith’s response to Trump’s immunity claim in the federal election subversion case comes ahead of oral arguments before a US appeals court in Washington, DC, which are scheduled for January 9.
“The defendant asserts (Br.1) that this prosecution ‘threatens … to shatter the very bedrock of our Republic.’ To the contrary: it is the defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election, that threatens the democratic and constitutional foundation of our Republic,” Smith wrote in the new
“This Court should affirm and issue the mandate expeditiously to further the public’s — and the defendant’s — compelling interest in a prompt resolution of this case,” he added.
Trump faces four counts in the case, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.
Pre-trial proceedings were temporarily put on hold in the federal election subversion case pending Trump’s appeal of the district court judge’s ruling that, as a former president, he is not entitled to immunity for potential crimes he committed while in office.
The trial was initially scheduled to begin March 4; the former president’s lawyers have advocated repeatedly for the trial to take place after the 2024 presidential election in November, with Trump’s fight over the immunity claim underscoring those efforts.
If the circuit moves quickly on these arguments — which the special counsel and the trial judge have said are not credible — it could potentially keep the Trump’s trial date as scheduled.
In his filing Saturday, Smith warned that allowing a former president this kind of broad immunity poses extreme danger.
“The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern,” the filing reads.
“That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy,” it adds.
In Saturday’s filing, Smith also rebutted Trump’s argument that criminal prosecution would amount to double jeopardy because he was acquitted by the Senate during impeachment proceedings.
“Because a former President does not have the sort of sweeping immunity the defendant advocates, the denial of his motion to dismiss should be affirmed, and this case should proceed to trial,” Smith wrote.
“That straightforward conclusion would not, however, foreclose the possibility that a future prosecution could raise difficult questions implicating cognizable separation-of-powers concerns,” he added.
Trump has previously asked the DC appeals court to overturn a lower-court ruling rejecting his claims of immunity in the election subversion case. The Supreme Court refused to take up the case on an expedited basis, as Smith requested.
Trump’s earlier filing reiterates what the former president’s lawyers have repeatedly asserted — that Trump was working in his official capacity as president to “ensure election integrity” when he allegedly undermined the 2020 election results and therefore has immunity, and that his indictment is unconstitutional because presidents cannot be criminally prosecuted for “official acts” unless they are impeached and convicted by the Senate.
District Judge Tanya Chutkan rejected immunity claims from Trump and his attorneys, writing in an opinion that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”
Smith asks appeals court to implement ruling quickly
The special counsel’s arguments to the appeals court also try to tackle head-on how Trump has used potential delays in the road to trial to his advantage.
The prosecutors asked the appeals court to implement its ruling five days following the decision. It’s an atypical request that — if granted and if the Department of Justice wins at this level — would force Trump’s team to pursue further appeals with the DC Circuit or the Supreme Court within days.
“For the reasons given in the Government’s motion to expedite appellate review, including the imperative public importance of a prompt resolution of this case, the Government respectfully requests the Court to issue the mandate five days after the entry of judgment,” the DOJ prosecutors wrote. “Such an approach would appropriately require any party seeking further review to do so promptly.”
The questions in this appeal need to be resolved by higher courts before Trump’s trial can take place, because of the rights he has as a criminal defendant — and the appeals process often takes months. But this appeal is already moving at relatively warp speed.
In Saturday’s filing, prosecutors point out they already convinced the appeals court to expedite the case.
A new wrinkle has emerged in former President Donald Trump’s immunity battle in his federal election interference case, with a watchdog group filing a brief on Friday calling for his appeal effort to be dismissed and for his trial allowed to resume.
Trump is currently contending with four criminal indictments at the state and federal levels, totaling 91 criminal charges in all. Among these cases is the federal one brought by the Department of Justice (DOJ) and special counsel Jack Smith pertaining to Trump’s alleged efforts to overturn the 2020 presidential election, which ultimately led to the January 6, 2021, Capitol riot. Trump, the frontrunner in the 2024 GOP presidential primary, has maintained his innocence in the case.
Trump’s current tactic in the case has been to claim that he has complete immunity from criminal prosecution for anything that he did while he was president. This claim was previously shot down by the judge overseeing the case, Tanya Chutkan, and is now set to go before the D.C. Circuit appeals court. Meanwhile, an effort by Smith to try and accelerate the appeals process straight to the U.S. Supreme Court was recently dismissed. As the process winds on, the trial has been put on hold, leading some observers to accuse Trump of trying to delay it as long as possible.
American Oversight, a nonprofit legal watchdog group, filed an amicus brief on Friday that said the D.C. Circuit appeals court lacks the jurisdiction to take up Trump’s appeal, and should therefore send the matter back to Chutkan and allow the trial to resume.
“As the American Oversight amicus brief argues, Supreme Court precedent [from 1989] prohibits a criminal defendant from immediately appealing an order denying immunity unless the claimed immunity is based on ‘an explicit statutory or constitutional guarantee that trial will not occur,'” the group’s official statement explained. “Trump’s claims of immunity rests on no such explicit guarantee. Therefore, given that Trump has not been convicted or sentenced, his appeal is premature. The D.C. Circuit lacks appellate jurisdiction and should dismiss the appeal and return the case to district court for trial promptly.”
In response to the filing, various legal experts and analysts chimed in on social media, with some calling the move “an interesting wrinkle.”
“Interesting wrinkle in the battle over Trump’s claims of presidential immunity: American Oversight, in an amicus brief, says the issue did not merit immediate appeal and the DC Circuit should simply kick the case back to Judge Chutkan for trial,” New York Times legal reporter Alan Feuer wrote on X, the platform previously known as Twitter.
“Interesting argument in new amicus brief by conservative lawyers that Trump’s immunity appeal is subject to final judgment rule and must wait until after trial,” former U.S. Attorney Barbara McQuade, who previously served the Eastern District of Michigan from 2010 to 2017 and appointed by former President Barack Obama, wrote. “Brief uses textual reading of Constitution to argue stay should be lifted immediately.”
American Oversight describes itself as a nonpartisan group, not conservative.
Ben Meiselas, co-founder of the MeidasTouch media outlet, laid out the brief’s argument in-depth, noting that the 1989 ruling cited by it was written by the notably conservative Supreme Court justice, Antonin Scalia.
“Oh, I am liking this amicus brief just filed by a group called American Oversight in Trump’s DC absolute immunity appeal,” Meiselas wrote on X on Friday. “The brief points out that a 1989 Supreme Court case called Midland Asphalt holds that the DC Circuit doesn’t even have jurisdiction to hear Trump’s appeal and must dismiss since an interlocutory appeal (appeal mid-case) can only occur when there is strict textual support for the appeal in a statute or in the Constitution like the Speech or Debate clause.”
He continued: “There is not strict textual support for Trump’s immunity claim anywhere — at best it’s based on a specious negative inference — thus the argument goes that the Appeals Court must dismiss the appeal and send it back for trial immediately. Conservative Justice Scalia wrote the Midland Asphalt decision. No one has made this argument before. This can be a game changer.”