Jack Smith and his team filed a new brief on Saturday with the D.C. Circuit Court of Appeals, which rejected Donald Trump’s claims that he’s immune from prosecution over his attempts to overturn the 2020 presidential election on the basis he was president at the time and that he was acquitted by the Senate following being impeached over his actions.
“Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” special counsel Smith and his team wrote in its 82-page filing (via Politico). “The Founders did not intend and would never have countenanced such a result.”
Last weekend, Trump claimed he was merely doing his “duty” as commander-in-chief by alleging the election was “rigged” or “stolen.” His lawyers offered their own late-night filing last Saturday to the D.C. Court of Appeals, where they asked the judges to overturn a lower court’s ruling that Trump can be prosecuted for the actions he took while in office. Being president, District Judge Tanya Chutkan wrote in the ruling earlier this month, “does not confer a lifelong ‘get-out-of-jail-free’ pass.”
In the new brief, Smith argues that there is no blanket immunity from criminal prosecution afforded to the presidency, especially for a former president charged with threats to the transfer of power. “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,” Smith wrote.
With Trump is facing four separate criminal indictments — two federal cases brought by Smith and two state cases— and as the first former president in history to be charged with either state of federal crimes, the arguments both sides present are unprecedented.
The brief addressed that Trump and his legal team’s argument for post-presidential immunity may apply regarding civil liability for official conduct — citing the Supreme Court’s decision in 1982 that the president has immunity for civil damages, which followed President Richard Nixon’s resignation in 1974 and debate over whether he should be prosecuted over Watergate — but the ruling does not exempt a president from criminal liability.
“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,” per the brief. “Constitutional text, historical practice, and other immunity doctrines confirm that conclusion.”
The brief later states: “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.” It also shot down Trump’s claims that his acquittal by the Senate renders the criminal case a violation of the Constitution’s protection against double jeopardy, with the brief citing that the district court has already denied both motions of presidential-immunity and double-jeopardy motions.
“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,” the brief adds.
A three-judge panel is scheduled to hear oral arguments on Jan. 9 over the matter.
Earlier in the month, the Supreme Court denied Smith’s petition to fast-track a ruling on whether Trump is immune from criminal prosecution for any crimes he committed while in office. The court did not specify its reasons for the decision.
