Jack Smith guts Trump's claim to immunity in his SCOTUS brief
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them” — Smith’s brief to the Supreme Court.
Introduction
Trump believes ex-Presidents (meaning him) are above the law. Special Prosecutor Jack Smith disagrees. In a brief to the Supreme Court (SCOTUS), he explains why.
Background
Smith charged Trump with four felonies after the 2020 election loser ignored the will of the people and attempted a coup to stay in power. A grand jury found grounds to indict. Trump claimed the indictments were specious as he had an absolute right as President to break the law. The Supreme Court has agreed to consider if he is right. They scheduled oral arguments for April 25th.
In his brief, Smith enumerates why no American gets to be Louis XIV, even temporarily, no matter which job the people elect them to do. Let us have a look at it.
The brief
Smith starts by outlining the case. (I have omitted case references and citations as this piece is for non-lawyers.)
According to a federal grand jury indictment, petitioner, while serving as President, conspired with several private individuals and a public official to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud to obstruct the federal government function by which those results are collected.
(bolding mine)
He states Trump’s modus operandi
The indictment alleges that petitioner sought to accomplish the conspiracy’s objectives through five means:
using deceit toward state officials to subvert the legitimate election results in those States
using deceit to organize fraudulent slates of electors in seven targeted States and cause them to send false certificates to Congress
leveraging the Department of Justice (DOJ) to use deceit to have state officials replace the legitimate electoral slate with electors who would cast their votes for petitioner
attempting to enlist the Vice President, in his capacity as President of the Senate, to fraudulently alter the election results during the certification proceeding on January 6, 2021
directing supporters to the United States Capitol to obstruct the proceeding, and exploiting the violence and chaos that transpired at the Capitol on January 6
And enumerates the four charges.
Count 1 charges petitioner with conspiring to defraud the United States
Counts 2 and 3 charge petitioner with conspiracy and substantive violations for corruptly obstructing the certification of the presidential election results on January 6
Count 4 charges petitioner with conspiring to violate one or more person’s constitutional right to vote and have one’s vote counted
Smith then describes Trump’s position.
Petitioner moved to dismiss the indictment on the grounds that he enjoys absolute immunity from criminal prosecution for acts taken within the “outer perimeter” of his official responsibilities and that the indictment’s allegations all fall within that scope.
In other words, not only does Trump argue he enjoys absolute immunity for official acts, but he also claims everything he did was an official act. This framing is critical. Because even if SCOTUS decides that ex-presidents have absolute immunity for their official acts as president, Smith will argue that plotting a coup cannot be considered an official presidential act.
Smith then summarizes the DC Appeals Court finding supporting his position.
The court observed that petitioner’s “alleged efforts to remain in power despite losing the 2020 election were, if proven, an unprecedented assault on the structure of our government,” and it rejected petitioner’s “claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”
SUMMARY OF ARGUMENT
Smith then outlines his arguments, starting with:
I. A former President lacks absolute immunity from federal criminal prosecution for conduct involving his official acts
Here, Smith says Trump has to find justification in the Constitution’s Article II (outlining presidential power) for ignoring the law.
A: Under this Court’s established separation of powers framework, a claim of presidential exemption from a statutory limitation requires the President to identify an Article II basis that precludes the application of that congressional act.
Smith then says there is no Article II basis.
No presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote.
And he finishes with a legal piledriver.
The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.
Smith then turns to history and precedent and dismisses Trump’s hysterical claim that, without immunity, bad actors (the deep state?) will hound Presidents after they leave office — leaving unstated the point that none have been so hounded.
B. History likewise refutes petitioner’s claim. The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts.
Smith adds that a sitting President, former Presidents, and the DOJ have accepted that former Presidents are just like regular folks in the eyes of the law.
The closest historical analogue 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. 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 petitioner’s arguments in this case, so had former Presidents.
Next, Smith points out that sauce for the civil goose is not sauce for the criminal gander.
C. The Court’s holding in Nixon v. Fitzgerald, that a President enjoys immunity from private civil damages actions does not extend to federal criminal prosecutions.
He goes on to point out that Trump’s claim he is special because he was President is bullshit — because that fantastical spin on the law would give a President carte blanche for unchecked criminality.
D. Federal criminal law applies to the President. Petitioner suggests that unless a criminal statute expressly names the President, the statute does not apply. That radical suggestion, which would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition—is unfounded.
Next, Smith swats away Trump’s claim that the Constitution mandates Congress impeach and convict a President before he is subject to criminal prosecution.
E. The Impeachment Judgment Clause, U.S. Const. Art. I, § 3, Cl. 7, does not establish a rule requiring a President’s impeachment and conviction before a former President may be prosecuted.
Smith drily points out that Trump shoots himself in the foot. By claiming that he can be prosecuted if Congress impeaches him, Trump concedes that there are circumstances under which a former president can be prosecuted. Smith agrees. The only daylight between him and Trump is under which circumstances.
Petitioner acknowledges that prosecution is permitted after impeachment and conviction, which refutes many of the other arguments in his brief.
He next dismisses Trump’s interpretation of a foundational legal case as wrong. And a long history of case law further shreds Trump’s criminal immunity claim.
F. Likewise, neither Marbury v. Madison, nor petitioner’s other remaining arguments support his claim. Marbury did not hold that a President’s official acts can never be examined in a court, and a host of cases from the Founding to the present refute that claim. The cases on which petitioner relies stand for the distinct and narrower proposition that courts will not enjoin a sitting President. That principle has no application to criminal prosecution of a former President
In addition, Smith scorns Trump’s claim that just because no President has been criminally prosecuted does not mean immunity exists. Trump is in criminal court because he was the first President to go on a crime spree in office. (Excepting Nixon who Ford pardoned because he knew the law allowed the prosecution of ex-presidents.)
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 petitioner’s alleged conduct.
Smith then acknowledges that this particular SCOTUS has some strange ideas. The subtext is that a court containing Clarence Thomas and Samuel Alito is capable of bum-suckling Trump favoritism. Regardless, Trump’s behavior was so egregious that even the most bias-blinded jurist has to allow him to be tried.
II. Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment.
In the ensuing 32 pages of the brief, Smith offers a survey of case law and other evidence to support his contention that Trump is eligible to be criminally prosecuted for his criminal acts. He starts by presenting a road map of where he is going.
ARGUMENT
This case implicates two principles of paramount importance: the necessity of the effective functioning of the Presidency, and the equally compelling necessity of upholding the rule of law. Petitioner is charged with crimes that, if proved at trial, reflect “an unprecedented assault on the structure of our government.”
The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law. To the contrary, a bedrock principle of our constitutional order is that no person is above the law—including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.
I will spare the reader the details of his argument. This piece is an essay, not a novel. In addition, the dissection of legal support for presidential criminal prosecution is a subject for a law school class. However, I will list the section headings to give the reader an understanding of the structure of Smith’s argument. (For the full text click HERE [pages 8- 40].)
Smith starts with the position that an ex-president has no criminal immunity.
I. A FORMER PRESIDENT LACKS IMMUNITY FROM FEDERAL CRIMINAL PROSECUTION FOR OFFICIAL ACTS DURING HIS PRESIDENCY
A. A Claim Of Absolute Criminal Immunity For A FormerPresident’s Official Acts Violates Established Separation-Of-Powers Principles
B. History Supports The Conclusion That Former Presidents Are Subject To Prosecution For Official Acts
C. Criminal Immunity For A Former President Enjoys No Support From Fitzgerald’s Recognition Of Civil Immunity
D. Federal Criminal Law Applies To The President
E. The Impeachment Judgment Clause Does Not MakeSenate Conviction A Prerequisite To Criminal Prosecution Of A Former President
F. Petitioner’s Understanding Of Marbury And His Other Remaining Arguments Lack Merit
Smith then writes that if somehow SCOTUS decides that ex-Presidents had a get-out-of-jail-free card for some crimes, it does not apply in this case.
II. EVEN IF A FORMER PRESIDENT HAS SOME IMMUNITY FROM FEDERAL CRIMINAL PROSECUTION FOR OFFICIAL ACTS, THIS PROSECUTION SHOULD PROCEED
A. No Form Of Official Immunity Should Preclude Trial On The Indictment In This Case
B. Any Remand Should Permit The District Court To Make Evidentiary And Instructional Rulings At Trial
Smith ends with his ask — telling SCOTUS to sign off on the Appeals Court’s decision that the law does not protect a rogue American president from answering for his crimes in an American Court.
He finishes by telling (respectfully) SCOTUS not to stall and issue their ruling ASAP. He helpfully refers to the 1974 Supreme Court decision denying a President was above the criminal law.
Today’s Court will be well aware that in the Nixon case, SCOTUS issued their decision 16 days after oral arguments — even though they did not have the precedent that the Nixon decision gave this court. Note: May 13 is the first business day 16 days after April 25 — the day of oral arguments.
Today’s Court will also know that in 1974, Justice Rehnquist recused himself because he was closely associated with several Watergate conspirators. Not that Thomas gives a shit.
CONCLUSION
The judgment of the court of appeals should be affirmed. Consistent with the Court’s expedited treatment of this case, the government respectfully requests that the Court issue the opinion and a certified copy of the judgment forthwith. Cf. Nixon, 418 U.S. at 716.