Former President Trump argued in a Supreme Court brief filed Monday that the Constitution’s framers would have supported his position that a president can’t face criminal prosecution for official acts.
“The framers viewed the prosecution of the Chief Executive as a radical innovation to be treated with great caution,” Mr. Trump’s lawyers argued in the filing, which comes roughly a week before the justices hear oral arguments over whether a president is immune from criminal charges.
Special counsel Jack Smith told the high court last week that the founders never intended for presidents to escape criminal liability for official acts they committed while in office.
Mr. Smith said presidents are not above the law and to allow a president to be free from prosecution “would free the president from virtually all criminal law — even crimes such as bribery, murder, treason and sedition.”
The justices are scheduled to consider whether a former president is immune from criminal charges for official acts he committed while in office in a landmark case scheduled for oral arguments on April 25. A decision is expected by the end of June.
Mr. Trump has asked the Supreme Court to dismiss the indictment over his challenge of the 2020 election results, renewing his claim of immunity from criminal prosecution.
A federal grand jury in the District of Columbia indicted Mr. Trump on one count of conspiracy to defraud the U.S., one count of conspiracy to violate civil rights and two counts of attempting to obstruct the vote certification proceedings.
The immunity case has delayed Mr. Smith’s prosecution of Mr. Trump, and it is not clear whether the federal election fraud case will go to trial before November’s election.
Mr. Trump’s legal team said denying a president immunity from criminal prosecution would lead to a political tit-for-tat.
It took four justices to vote in favor of hearing Mr. Trump’s appeal after the D.C. Circuit Court of Appeals rejected his absolute immunity argument.
Mr. Smith had been pushing for a trial early in March, but the justices said it would have to wait until after their ruling. They said that shouldn’t be read as a statement on the merits of Mr. Trump’s or Mr. Smith’s arguments.
Mr. Smith had asked the justices not to hear the dispute, saying the country deserves a speedy resolution to Mr. Trump’s case.
The justices on Tuesday are set to are weigh a separate case brought by defendants in the Jan. 6, 2021, attack on the U.S. Capitol who were charged under the official proceeding obstruction law and who argue it is being misused against them.
Mr. Trump faces four separate indictments along the East Coast while he campaigns as the presumptive Republican presidential nominee ahead of a likely rematch with President Biden.
The federal election subversion case is viewed as the marquee case.
Mr. Smith secured the indictment based on actions Mr. Trump took after his 2020 election loss to Mr. Biden, including pressuring state officials and the Justice Department to find voter fraud, setting up a false slate of electors in states he lost to Mr. Biden, and leaning on Vice President Mike Pence to send the Electoral College vote-counting process back to the states instead of certifying the votes in Congress.
Mr. Trump said he was acting in his official capacity when he tried to root out election fraud and challenge the results.
He said presidents must make tough calls all the time, and failing to grant immunity would spark a cycle of political prosecutions from administration to administration.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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