While Trump has argued that allowing a prosecution such as the one he faces in Washington would chill future presidents from carrying out their duties due to the prospect of future criminal indictment, Smith contends that fear is overblown.
“Multiple safeguards — ultimately enforced by the Article III courts — protect against any potential burdens on the Presidency that the defendant claims to fear,” prosecutors wrote. “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.”
Smith’s argument sets the framework for the most crucial test of his prosecution of Trump for seeking to subvert the 2020 election, the beginning of a must-win legal battle that is likely headed for the Supreme Court as soon as next month.
Smith used his brief to pick apart Trump’s assertion that he’s immune from criminal prosecution for his efforts to seize a second term despite losing the election. On Dec. 1, U.S. District Court Judge Tanya Chutkan turned down Trump’s motion to dismiss the case on those grounds, prompting the former president’s appeal.
Smith argues that while presidents deserve protection from civil lawsuits, there is no blanket immunity from criminal prosecution, particularly for a former president charged with making grave threats to the transfer of power. Even if presidents did enjoy immunity for their official duties, he argues, Trump’s actions would not qualify for such protection because he was acting well outside the bounds of his proper duties.
“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,” the special prosecutor wrote.
Many of the arguments on both sides venture into uncharted territory since no former president had ever faced criminal prosecution before Trump was hit with four separate criminal indictments over the past year: Two federal cases brought by Smith and two state cases.
Smith’s brief notes that Trump’s argument for post-presidential immunity appears to be in conflict with the view that prevailed at the time President Richard Nixon resigned in 1974, when whether Nixon should be prosecuted for Watergate was hotly debated but whether he could be didn’t seem to be much of an issue.
President Gerald Ford’s controversial pardon of Nixon one month after his resignation squelched that possibility.
“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,” Smith wrote in the new brief, which also brushes aside Trump’s claims that his acquittal by the Senate renders the criminal case a violation of the Constitution’s protection against double jeopardy.
“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,” prosecutors wrote.
The unusual filing of Smith’s brief to meet a Saturday deadline on a holiday weekend is an indication of the urgency with which the D.C. Circuit is handling Trump’s appeal. A three-judge panel is scheduled to hear oral arguments on the matter Jan. 9.
For Smith, the speed of a three-judge ruling is nearly as important as the result. The brief filed Saturday asks the appeals court to make any ruling effective five days after it is issued, giving the losing side limited time to appeal to either the full bench of the D.C. Circuit or the Supreme Court.
Trump is slated to go on trial in the election case March 4, but all pretrial deadlines have been on hold while Trump’s immunity appeal has been pending and it’s unclear if even a final Supreme Court ruling by early February would leave enough time for pretrial proceedings to be completed in time for the trial to kick off as scheduled.
Another potential wrinkle in the case: Outside advocacy group American Oversight has urged the appeals court to essentially punt the appeal, contending that Trump — like most criminal defendants — had no right to an appeal until after a trial and jury conviction.
Earlier this month, the Supreme Court
turned down a request from Smith to bypass the normal appeals process and take up the presidential immunity issue on an urgent basis. The justices did not explain their decision, but it does not preclude the question returning to the high court after the appeals court rules.