(States Newsroom) — Donald Trump’s view of absolute immunity for actions he took as president would radically change U.S. democracy and give presidents unprecedented power akin to monarchs rather than elected leaders, U.S. Justice Department special counsel Jack Smith wrote in a reply brief to the U.S. Supreme Court late Monday.
Smith’s 66-page brief, answering Trump’s argument to the high court that federal criminal charges against him for seeking to overturn the 2020 presidential election should be dropped because he was president at the time, called Trump’s claim a “radical suggestion” that would upend foundational principles of U.S. democracy.
Trump’s argument that conduct a president commits in office cannot be prosecuted “would free the President from virtually all criminal law — even crimes such as bribery, murder, treason, and sedition,” Smith wrote.
At oral arguments in the D.C. Circuit Court of Appeals in January, Trump lawyer D. John Sauer said 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 the president was first impeached and removed from office by Congress.
In Trump’s brief to the court last month, his lawyers claimed a theory of “absolute presidential immunity” that asserts a president cannot be criminally indicted for actions taken in office.
The one exception to that rule is a president who has been impeached and removed from office, Trump’s legal team has argued.
Trump was impeached by the Democrat-controlled U.S. House for inciting an insurrection on Jan. 6, 2021, when a mob of his supporters attempted to block the certification of the 2020 election results. An evenly split Senate fell short of the two-thirds standard for conviction, though seven Republicans voted with all Democrats and independents to convict.
Trump is the presumptive Republican nominee for president this year.
Smith said Monday that Trump’s broad immunity argument placed too much faith in Congress’ execution of an inherently political process to achieve criminal accountability.
Impeachment is “not intended to provide accountability under the ordinary course of law,” he wrote.
Historical examples
The prosecutor also took aim at the historical examples Trump cited to back up his immunity claim.
The examples Trump used either applied only to sitting presidents and not to former presidents, or were used to dismiss civil lawsuits and not criminal charges, Smith said.
In contrast, the Watergate scandal provided an example to show that presidents have long understood they are subject to criminal justice 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 endorsed that view, Smith said.
Every president since George Washington has understood they are subject to criminal charges and punishment, Smith said.
The U.S. legal system rests on the principle that no person — no matter their office — is above the law, Smith said.
A different interpretation, including the one advanced by 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 “adopted a system of checks and balances to avoid” dangers of a monarch who is above the law.
Criminal charges are not civil suits
Smith also argued that Trump’s claim that rejecting a broad interpretation of presidential immunity would motivate political prosecutions of every future former president was unfounded.
Protections against civil suits may be appropriate, Smith said, citing Supreme Court precedent.
But federal criminal charges, which can be brought only by the Department of Justice and are subject to “institutional standards of impartial prosecution,” are much harder to abuse, Smith said.
There are “strong safeguards against groundless prosecutions,” Smith said.
Smith’s brief was a response to Trump’s argument last month in which the former president advanced his theory of “absolute presidential immunity.”
Trump’s attorneys said presidents needed immunity from any criminal prosecutions for the office itself to function. The framers were willing to trade a president’s criminal accountability for the office’s independence, Trump’s team argued, saying that a similar prohibition against civil suits should apply to the charges brought by a federal grand jury.
Up next
Trump has the option to respond to Smith’s brief by the end of the day April 15.
Oral arguments on the immunity question are scheduled for April 25.
The Supreme Court case is meant to decide a pretrial issue in a federal case related to Trump’s part in the Jan. 6, 2021, attack on the U.S. Capitol.
Trump asked the trial court to dismiss the charges based on his presidential immunity claim. Both the trial judge and the D.C. Circuit rejected that argument.
In the Monday brief, prosecutors asked the court to quickly issue an opinion in the case. The start of the trial has been delayed for months while the immunity question has been pending.
With less than seven months to Election Day, the four criminal proceedings against Trump will increasingly conflict with his campaign schedule as he pursues a return to the White House.
A separate criminal trial — on New York state business records falsification charges — against Trump is scheduled to begin April 15.
The start of the Fulton County trial of Trump and his allies accused of interference in Georgia’s 2020 election has yet to be scheduled.
