More than a dozen retired four-star military leaders who served in various administrations over the past six decades told the Supreme Court on Monday that former President Donald Trump’s claim of absolute immunity imperils national security.
Nineteen admirals and generals who have served in presidential administrations since that of the late John F. Kennedy asked the justices to reject Mr. Trump’s absolute immunity claim, saying it threatens “the military’s role in American society, our nation’s constitutional order, and our national security.”
Their filing said the claim of absolute immunity from prosecution jeopardizes international leadership as well.
“[Mr. Trump’s] theory that the President is absolutely immune from criminal prosecution, if accepted, has the potential to severely undermine the Commander-in-Chief’s legal and moral authority to lead the military forces, as it would signal that they but not he must obey the rule of law,” the former military leaders’ wrote.
“Under this theory, the President could, with impunity, direct his national security appointees to, in turn, direct members of the military to execute plainly unlawful orders, placing those in the chain of command in an untenable position and irreparably harming the trust fundamental to civil-military relations.”
The filing comes in a 38-page brief supporting special counsel Jack Smith’s request that the high court reject Mr. Trump’s claim that he can’t be prosecuted over his efforts to change the 2020 election results.
The justices will hear arguments on April 25 on whether a former president is immune from criminal charges for official acts committed while in office in a landmark case. A decision is expected by the end of June.
Mr. Trump had asked the Supreme Court to dismiss the indictment over his challenge of the 2020 election results, renewing his claim of immunity from criminal prosecution.
The move to hear the case has delayed Mr. Smith’s prosecution of Mr. Trump, and it is unclear whether the federal election fraud case will go to trial before the 2024 election.
Mr. Trump’s legal team said that denying a president immunity from criminal prosecution would lead to a political tit-for-tat.
“A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. 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,” they wrote.
“The Court should dismiss the indictment,” Mr. Trump’s legal team concluded.
Lower courts have rejected Mr. Trump’s contention and sided with Mr. Smith, who is pursuing the case.
The justices limited the case to one question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
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.
In a filing on Monday, he told the justices that presidents are not above the law.
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.
Mr. Trump faces four separate indictments along the East Coast while he campaigns as the presumptive Republican presidential nominee and a rematch with President Biden.
The federal election subversion case is viewed as the marquee case.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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