Special counsel: Trump immunity claim threatens democracy

Source: Politico | December 30, 2023 | Josh Gerstein and Kyle Cheney

Special counsel Jack Smith rejected Donald Trump’s contention that the criminal indictment of him is constitutionally invalid.

Donald Trump’s bold claims that he’s immune from criminal prosecution over his efforts to overturn the 2020 presidential election “threaten to undermine democracy,” special counsel Jack Smith warned a federal appeals court Saturday.

In a brief filed with the D.C. Circuit Court of Appeals, Smith rejected Trump’s contention that the criminal indictment of him for trying to reverse his loss at the polls three years ago is constitutionally invalid because he was serving as president at the time and also because he was acquitted by the Senate after he was impeached for those actions.

“Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” Smith and his team wrote in an 82-page filing. “The Founders did not intend and would never have countenanced such a result.”

While Trump has argued that allowing a prosecution such as the one he faces in Washington would chill future presidents from carrying out their duties due to the prospect of future criminal indictment, Smith contends that fear is overblown.

“Multiple safeguards — ultimately enforced by the Article III courts — protect against any potential burdens on the Presidency that the defendant claims to fear,” prosecutors wrote. “Any burdens of post-Presidency criminal liability have minimal impact on the functions of an incumbent and are outweighed by the paramount public interest in upholding the rule of law through federal prosecution.”

Smith’s argument sets the framework for the most crucial test of his prosecution of Trump for seeking to subvert the 2020 election, the beginning of a must-win legal battle that is likely headed for the Supreme Court as soon as next month.

Smith used his brief to pick apart Trump’s assertion that he’s immune from criminal prosecution for his efforts to seize a second term despite losing the election. On Dec. 1, U.S. District Court Judge Tanya Chutkan turned down Trump’s motion to dismiss the case on those grounds, prompting the former president’s appeal.

Smith argues that while presidents deserve protection from civil lawsuits, there is no blanket immunity from criminal prosecution, particularly for a former president charged with making grave threats to the transfer of power. Even if presidents did enjoy immunity for their official duties, he argues, Trump’s actions would not qualify for such protection because he was acting well outside the bounds of his proper duties.

“Dismissal [is] unwarranted because the indictment contains substantial allegations of a plot to overturn the election results that fall well outside the outer perimeter of official Presidential responsibilities,” the special prosecutor wrote.

Many of the arguments on both sides venture into uncharted territory since no former president had ever faced criminal prosecution before Trump was hit with four separate criminal indictments over the past year: Two federal cases brought by Smith and two state cases.

Smith’s brief notes that Trump’s argument for post-presidential immunity appears to be in conflict with the view that prevailed at the time President Richard Nixon resigned in 1974, when whether Nixon should be prosecuted for Watergate was hotly debated but whether he could be didn’t seem to be much of an issue.

President Gerald Ford’s controversial pardon of Nixon one month after his resignation squelched that possibility.

“No historical materials support [Trump’s] broad immunity claim, and the post-Presidency pardon that President Nixon accepted reflects the consensus view that a former President is subject to prosecution after leaving office,” Smith wrote in the new brief, which also brushes aside Trump’s claims that his acquittal by the Senate renders the criminal case a violation of the Constitution’s protection against double jeopardy.

“Because the only remedies available in the impeachment proceedings were removal and disqualification, the defendant was never previously placed in jeopardy. But even if he were, the indictment charges different offenses than were at issue in his impeachment,” prosecutors wrote.

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