In a filing to the Supreme Court, Smith and his team of prosecutors argued that Trump asserts a “novel and sweeping immunity” from the criminal laws that all citizens must abide by, and said his alleged scheme to thwart the transfer of presidential power was outside the duties of his office.
“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,” they wrote. “The president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.”
The special counsel told the justices that there are “layered safeguards” when a criminal case is brought that “provide assurance that prosecutions will be screened under rigorous standards and that no president need be chilled in fulfilling his responsibilities by the understanding that he is subject to prosecution if he commits federal crimes.”
Smith’s filing lays out the arguments his office will make before the justices on April 25, when they convene to weigh Trump’s bid to bring an end to his federal prosecution in Washington, D.C. Trump submitted his opening brief last month, in which he urged the Supreme Court to find that former presidents are entitled to broad protections from criminal prosecutions for acts taken while in office.
“From 1789 to 2023, no former, or current, president faced criminal charges for his official acts — for good reason,” Trump’s lawyers told the court in their submission. “The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office.”
But in his filing to the court, the special counsel wrote that “federal criminal law applies to the president” and called Trump’s argument to the contrary a “radical suggestion.”
“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,” prosecutors argued.
Notably, prosecutors wrote that even if the high court were to find that some immunity could be extended to a former president’s “official acts” while in office, that would not foreclose Trump’s prosecution. According to Smith and his team, the allegations against Trump deal with “private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud.”
The special counsel told the court that an alleged scheme to overturn the outcome of the presidential election is the “paradigmatic example of conduct that should not be immunized, even if other conduct should be.”
The high court is reviewing a ruling from a three-judge panel on the federal appeals court in Washington that found Trump can be prosecuted for alleged attempts to thwart the transfer of presidential power after the 2020 election. The former president was charged last August with four counts related to accusations he acted unlawfully in a bid to stay in office, and he has pleaded not guilty.
A trial in the case before U.S. District Judge Tanya Chutkan was initially scheduled to begin last month, but proceedings have been paused since December as Trump pursues appeals on the immunity matter.
The case marks the first time the Supreme Court will consider whether a former president is immune from criminal liability for allegedly illegal acts committed while in office. It has in the past, though, found presidents are shielded from civil lawsuits stemming from conduct within the “outer perimeter” of their official duties.
The question before the justices in the case concerning Trump is “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.”
Though the phrasing of the question indicates that the Supreme Court may not consider Trump’s argument that a former president can only be prosecuted if he is first impeached by the House and acquitted by the Senate, both Trump and Smith addressed the assertion.
Smith told the court in his filing that the Constitution doesn’t establish a rule requiring such action by Congress before a former president can be prosecuted.
“Adopting [Trump’s] position would thwart the ordinary application of criminal law simply because Congress, in administering the political process of impeachment, did not see fit to impeach or convict,” the special counsel wrote.
Trump is the first former president to ever face criminal charges. The case in Washington is one of two brought by Smith — the second, in South Florida, involves Trump’s handling of sensitive government documents and his alleged obstruction of the probe. Trump also faces two state-level prosecutions, in New York and Georgia. He has pleaded not guilty to all charges and claims the cases against him are politically motivated.
A decision from the Supreme Court is expected by the end of June, but the justices’ consideration of the case has been raised in his other prosecutions.
In the New York case, in which Trump faces 34 counts of falsifying business records, his lawyers asked a Manhattan judge to delay the start of his trial until the Supreme Court rules on whether he has presidential immunity. The judge, though, denied the request, and the trial is set to begin this month.
Trump has also claimed that presidential immunity shields him from prosecution in the South Florida case, though the judge overseeing that case has not yet ruled on the former president’s efforts to dismiss the charges against him on those grounds.
If the former president prevails before the Supreme Court and the justices find he is entitled to sweeping immunity, it would bring an end to Smith’s case in Washington. A decision against Trump would allow the case to proceed, though it’s unclear whether a trial could be held before the November presidential election. Trump is the presumptive Republican presidential nominee, and he is poised to take on President Biden again.
The high court had been asked by Smith to step into the immunity dispute in December, but the justices declined to fast-track the case. Their decision not to intervene at that stage allowed the U.S. Court of Appeals for the District of Columbia Circuit to decide the issue first.
A three-judge panel unanimously ruled in February, finding that Trump is not entitled to presidential immunity from federal prosecution for “assertedly ‘official acts.'”
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” Judges Karen LeCraft Henderson, Michelle Childs and Florence Pan wrote in their opinion.
Henderson was appointed to the D.C. Circuit by President George H.W. Bush, while Mr. Biden named Childs and Pan to the appeals court.
The immunity case is not the only one that the Supreme Court will hear this month that will have ramifications for Trump. The justices will hear arguments on April 16 over the reach of a federal obstruction law that has been used to charge scores of defendants for their alleged actions during the Jan. 6, 2021, attack on the U.S. Capitol. Trump has been charged with violating the statute, and the court’s decision could impact whether that count and one other stand.
A decision in that case is also expected by the end of June.