Jack Smith urges Supreme Court to reject Trump’s immunity claim

Trump’s D.C. prosecution for allegedly trying to block Joe Biden’s victory is on hold while the justices consider his immunity claim, and the high court’s ruling will determine whether and how quickly Trump faces trial.

The justices’ decision to take up Trump’s claim — rather than let stand an appeals court decision that he can be prosecuted — has drawn criticism for delaying the trial, which initially was scheduled to begin in early March.

Subscribe to The Trump Trials, our weekly email newsletter on Donald Trump’s four criminal cases

Trump, the presumptive 2024 Republican nominee for president, has tried to push the D.C. trial and the other legal challenges he faces until after the general election rematch with Biden. If Trump is again elected president, he could appoint an attorney general who would seek to have the federal cases dropped.

The justices can rule on the immunity issue at any time after the April 25 argument, and are expected to do so before the term ends in late June or early July. That would push any trial at least into the second half of the summer or the fall.

In addition, the Supreme Court next week will review the validity of a law that has been used to charge hundreds of people with obstruction in connection with the Jan. 6, 2021, attack on the U.S. Capitol — and that is also a key element of the D.C. charges that Trump is facing.

In the special counsel’s filing in the immunity case on Monday, the office pushed back on what Smith called Trump’s “radical suggestion” of immunity that he said would allow a former president to escape accountability even for crimes such as murder or bribery. The criminal justice system, Smith added, includes numerous safeguards to ensure the law is applied fairly, including to an ex-president.

“These layered safeguards 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 wrote.

Trump faces four felony counts in connection with what prosecutors allege was a plan to block Biden’s 2020 presidential victory: conspiring to defraud the United States, conspiring to obstruct the formal certification in Congress of Biden’s victory, obstructing a congressional proceeding and conspiracy against rights — in this case, the right to vote.

He has asked the justices to reverse a unanimous appeals court ruling that said he may be prosecuted on those counts.

In their brief filed last month, Trump’s legal team said a president’s official acts, including the conduct alleged in the indictment, should be shielded from criminal prosecution. The threat of prosecution and imprisonment hanging over the head of any president, they wrote, would take away “the strength, authority, and decisiveness” of the person holding the office.

“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,” the filing said.

The ruling on the matter from the U.S. Court of Appeals for the D.C. Circuit took a starkly differently position, saying “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

The panel concluded that it could not “accept former President Trump’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.”

When the Supreme Court agreed to take the immunity case in late February, the justices said the issue they would decide was: “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.”

The question appears to give the court an opening to distinguish between a president’s actions that are private and those that are official duties, which the lower appeals court ruling does not do.

If the Supreme Court then returns the case to the lower courts for additional litigation over whether Trump’s alleged activity was official, that could push the trial until after the election.

Trump’s lawyers noted in their brief that no court has addressed whether immunity applies to the actions alleged in the indictment and said the matter could be sent back for “further factfinding as to specifics of this case.”

Smith also addressed the possibility that the justices could find a former president entitled to some immunity for official acts. That protection would not apply to Trump’s efforts to subvert the election results, Smith wrote, in part because of Trump’s alleged use of official power to achieve a private aim — to remain in office after his election defeat.