Special counsel Jack Smith in his final filing before the hearing is urging the Supreme Court to reject former President Donald Trump’s presidential immunity claim and deny any motions to delay a trial on charges related to the 2020 federal election conspiracy case.
Prosecutors from the DOJ allege President Trump attempted to overturn the 2020 election result on Jan. 6, 2021, charging him with four counts of conspiracy and obstruction. Former President Trump has denied he did anything wrong by calling for transparency and audits of the vote counts in swing states, and maintains presidential immunity for his actions on that day, which prevents prosecution for any actions he took while still in the top job.
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” Mr. Smith said in the brief.
“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts.”
According to Mr. Smith, former President Richard Nixon’s official conduct revealed during the Watergate scandal is the closest historical precedent for this situation.
Mr. Smith says President Nixon eventually accepted a pardon from his successor, former President Gerald Ford, and that “his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution.”
“Since Watergate, the Department of Justice has held the view that a former President may face criminal prosecution, and Independent and Special Counsels have operated from that same understanding,” he said.
Mr. Smith claims that despite President Trump’s claim of presidential immunity, all former presidents knew and wholly understood they were open to facing criminal charges for conduct while in the White House.
“The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law,” he said.
Trump Brief Argues Presidents Need Immunity to Function Effectively
Former President Trump has continued to argue that official acts by presidents should have immunity from criminal prosecution. Last month, he asked the Supreme Court to hold that he and other former presidents enjoy absolute criminal immunity from prosecution for official acts during their time in office.According to him, from 1789 to 2023, no former or sitting president has faced criminal charges for their official acts, and for good reason.
“The President cannot function, and the Presidency itself cannot retain its vital independence if the President faces criminal prosecution for official acts once he leaves office,” President Trump’s brief to the Court says.
“The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.”
“Prosecutors purport to represent the People, but their approach toward President Trump suggests ulterior motives. The Court should take seriously the risk that exposing former Presidents to criminal liability will enable partisan abuse,” they wrote.
Attorneys for President Trump on March 19 argued that presidential immunity is necessary in the context of criminal prosecution to prevent cycles of recrimination and even political “blackmail” of sitting presidents.
Prior cases haven’t definitively established whether presidents enjoy immunity from prosecution over alleged criminal acts related to their official actions.
Instead, the Court has historically upheld a level of presidential independence and ruled in the 1982 decision of Nixon v. Fitzgerald that a president enjoys absolute immunity from civil liability for acts that fall within the “outer perimeter” of his official duties.
A secondary issue that may be addressed is the demarkation between personal and official acts during President Trump’s tenure, and a possible separation of actions he can be prosecuted for, and actions covered by presidential immunity.
The outcome for the case could impact President Trump’s other legal battles, in which he also argues presidential immunity as a defense.
A federal appeals court recently ruled that several civil cases against President Trump related to Jan. 6 could go forward, finding that the actions cited personal acts of a candidate rather than official acts of a president.
The question whether this immunity applies to former presidents is also new territory.
