Special counsel Jack Smith on Monday asked the Supreme Court to reject former President Donald Trump’s claim of absolute immunity, saying the lack of prior presidents facing criminal prosecution demonstrates just how gross Mr. Trump’s actions were in contesting the 2020 election results.
“The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Mr. Trump’s] alleged conduct,” Mr. Smith wrote in a filing late Monday, roughly two weeks before the justices hear oral arguments on the former president’s absolute immunity claim.
The special counsel said the founders never intended presidents to escape criminal liability for official acts they committed while in office.
“The closest historical analogy is President Nixon’s official conduct in Watergate, and his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution,” Mr. Smith wrote.
“Since Watergate, the Department of Justice has held the view that a former President may face criminal prosecution, and Independent and Special Counsels have operated from that same understanding. Until [Mr. Trump’s] arguments in this case, so had former Presidents.”
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 will 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 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.
Their filing added that if the court does not grant Mr. Trump absolute immunity from criminal charges, the justices should at least outline a fact-finding guide for a lower court concerning the president’s official acts.
Such a ruling would further delay a trial. 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.
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 justices are weighing a separate case next week brought by Jan. 6 defendants 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 in 2020 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.
The D.C. Circuit Court of Appeals rejected that argument.
“We conclude that the interest in criminal accountability, held by both the public and the executive branch, outweighs the potential risks of chilling presidential action and permitting vexatious litigation,” the ruling said.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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