Law Professors, Former Officials File Amicus Briefs Opposing Trump at Supreme Court

Several key constitutional provisions are being debated as President Trump asserts immunity in his DC case.

The U.S. Supreme Court in Washington, on Feb. 8, 2024. Julia Nikhinson/Getty Images

A group of constitutional law scholars and former government officials are asking the Supreme Court to deny former President Donald Trump’s request that the justices halt a ruling against his claims to presidential immunity.

The U.S. Court of Appeals for the DC Circuit had upheld DC Judge Tanya Chutkan’s decision not to dismiss Special Counsel Jack Smith’s prosecution. It further mandated that Judge Chutkan’s proceedings would resume unless President Trump showed he filed for relief with the U.S. Supreme Court.

The amicus briefs filed on Feb. 13 argued that the legal bounds of presidential immunity didn’t shield President Trump from criminal prosecution.

“What kind of Constitution would immunize and thereby embolden losing first-term Presidents to violate federal criminal statutes—through either official or unofficial acts—in efforts to usurp a second term? Not our Constitution,” the amicus brief filed by multiple former officials read.

Among the amici were several former members of Congress, including former Sen. John Danforth (R-Mo.), who served as a special counsel under President Bill Clinton and as United Nations ambassador under President George W. Bush. Others included many former Justice Department officials, like Donald Ayer, deputy attorney general under President George H.W. Bush. Former Judge J. Michael Luttig and multiple former executive officials signed onto the brief as well.

Their brief alleged that President Trump’s arguments conflicted with prior court precedent and violated his duties under Article II of the Constitution. It also argued that ruling in President Trump’s favor would “improperly encourage a future President to violate federal criminal statutes by deploying the military and armed federal agents in efforts to alter the results of a presidential election.”

By contrast, President Trump’s appeal had warned that ruling against him would set a precedent that would hinder future administration’s decision-making.

“The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts—especially the most politically controversial decisions,” his Feb. 12 brief read. “The President’s political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution.”

Separation of Powers

The professors’ brief claimed that “the presidential immunity doctrine is designed to prevent the judicial branch from undermining the president’s capacity to discharge fully and fearlessly his constitutionally assigned roles.”

“It would be entirely improper to apply that doctrine to allow a former president to escape federal criminal prosecution—especially prosecution for crimes involving the use of violence and deception to undermine the results of a valid election and incapacitate Congress in the discharge of its constitutional obligations,” the professors said.

Harvard Law Professor Laurence Tribe joined the brief with four other professors from law schools at the University of Missouri, Ohio University, the University of Michigan, and University of North Carolina. Keith E. Whittington, a professor of politics at Princeton University, also joined the brief.

Both Mr. Tribe and Mr. Ayer penned a New York Times op-ed in 2021 calling on the Justice Department (DOJ) to investigate President Trump, suggesting that he might have violated the federal prohibition on insurrections. President Trump and others have noted that despite Mr. Smith’s allegations, he hasn’t charged the former president with violating that federal statute.

Their brief focused on constitutional history and disputing President Trump’s contention that the Impeachment Judgment Clause required Congress to try him before he could be criminally prosecuted. It also disputed the idea that impeachment proceedings triggered concerns about Double Jeopardy or the idea that a person cannot face potential punishment twice for the same offense.

President Trump had framed Mr. Smith’s prosecution as violating the principle of Double Jeopardy because the Senate had already acquitted him of an article of impeachment for allegedly inciting insurrection.

‘Official’ Duties of the President

The briefs came on the same day Chief Justice John Roberts asked for the DOJ’s response to President Trump’s application to stay an order from the U.S. Court of Appeals for the DC Circuit.

Justices of the U.S. Supreme Court pose for their official photo at the Supreme Court in Washington on Oct. 7, 2022. (Front L–R) Justices Sonia Sotomayor and Clarence Thomas, Chief Justice John Roberts, Justice Samuel Alito and Justice Elena Kagan. (Back L–R) Justices Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Olivier Douliery/AFP via Getty Images

As President Trump’s brief stated, his “claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question.”

In 1982, the Supreme Court held in Nixon v. Fitzgerald that presidents enjoyed immunity from civil liability while performing “official acts” within the “outer perimeter” of their authority. President Trump has argued that Mr. Smith’s indictment covers “official acts” that he carried out while in office.

The brief from Mr. Danforth and others suggested that the distinction between “official” and unofficial acts was irrelevant in the context of criminal wrongdoing. President Trump has denied any wrongdoing.

“Preservation of the Presidency designed by Article II requires rejection of immunity from prosecution for a President’s engaging in violations of federal criminal statutes to alter declared presidential election results, whether that conduct consists of acts as a candidate, official acts, or both,” the brief read.

Both that brief and President Trump’s brief cited Article II’s Vesting Clause, but for different reasons. President Trump contended that because the Constitution vested executive power in presidents, courts were arrogating his power by sitting in judgment over his official acts.

The officials, meanwhile, argued that President Trump’s use of the Vesting Clause was “backwards.” President Trump’s actions, they argued, were designed to usurp the presidency from then-President-Elect Joe Biden and, therefore, violated the clause’s provision that a president’s term last four years.

“Any President who loses reelection, but violates federal criminal statutes to try to usurp the office of the Presidency beyond his four-year term, would be threatening to violate the Executive Vesting Clause and the Twentieth Amendment in two inseparable ways,” the brief read.

“First, that President would be threatening to extend the four-year term in which executive power has been vested by election in that President. Second, that President would be threatening to prevent the vesting of the authority and functions of the Presidency in the newly elected President.”