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Special Counsel Jack Smith Asks Supreme Court to Weigh In on Trump’s Claim of Presidential Immunity from Criminal Prosecution

Special Counsel Jack Smith Asks Supreme Court to Weigh In on Trump’s Claim of Presidential Immunity from Criminal Prosecution

“Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution”

On December 1, the U.S. Court of Appeals for the D.C. Circuit affirmed a D.C. trial court’s denial of Trump’s claim of presidential immunity.

Based on that affirmance, federal judge Tanya Chutkan, who is overseeing the criminal trial against Trump, denied Trump’s motion to dismiss Special Counsel Jack Smith’s case, as Professor Jacobson reported: DC Court Denies Trump’s Motion To Dismiss DOJ Criminal Case Based on Claimed ‘Absolute’ Presidential Immunity.

From the Opinion denying Trump’s motion to dismiss:

The United States has charged former President Donald J. Trump with four counts of criminal conduct that he allegedly committed during the waning days of his Presidency. See Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. 113 (“Constitutional Motion”).1 For the reasons set forth below, the court will DENY both motions….

Defendant contends that the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he served as President of the United States, so long as he was not both impeached and convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). The Constitution’s text, structure, and history do not support that contention. No court—or any other branch of government—has ever accepted it. And this court will not so hold. Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office….

For the foregoing reasons, the court will DENY Motion to Dismiss Indictment Based on Presidential Immunity…and Motion to Dismiss the Indictment Based on Constitutional Grounds.

On December 7, former President Trump filed a Notice of Appeal of Judge Chutkan’s denial of his motion to dismiss, and that appeal was docketed in the Court of Appeals for the D.C. Circuit.

But now, Special Prosecutor Jack Smith has filed a special “petition for a writ for certiorari before judgment” with the United States Supreme Court, which has docketed the petition and ordered former President Trump to respond by Wednesday, December 20.

This petition asks the Supreme Court to weigh in on Trump’s claim that he is immune from criminal prosecution and to weigh in expeditiously.

From the Wall Street Journal: Special Counsel Asks Supreme Court to Quickly Rule on Trump’s Immunity:

Special counsel Jack Smith asked the Supreme Court to take up Donald Trump’s claim that he is immune from prosecution and cannot face criminal charges related to efforts to overturn the November 2020 election, in an unusual effort to expedite a judgment crucial for moving the case speedily toward trial.

The former president’s lawyers have grounded that argument in the Senate having acquitted him in an 2021 impeachment trial involving many of the same events, and that trying him again would amount to double jeopardy—that is, being prosecuted twice for the same crime.

Smith’s motion asks the court to take up the case before an appeals court considers it, forcing the justices to squarely weigh in on when, if at all, Trump’s trial should move forward.

A federal district judge rejected that argument, but Trump’s appeal to a federal circuit court could knock the criminal trial, scheduled to begin in March, off schedule, Smith wrote. In a bid to forestall that outcome, he asked the justices to cut out the appeals court and rule directly on the matter….

“Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution,” Smith wrote. In August, a federal grand jury in Washington indicted Trump on four counts over his efforts to overturn his 2020 defeat, including conspiracy to prevent citizens’ votes from being counted.

In contrast to the 2021 impeachment, the criminal charges don’t allege that Trump incited his followers to attack on Jan. 6 of that year. They do assert that he corruptly sought to undermine the election’s outcome by such acts as organizing slates of fraudulent electors and pressuring officials, including Vice President Mike Pence, to alter the results. Trump has pleaded not guilty….

Smith asked the court to give Trump one week to respond to his motion, a schedule that would allow the justices to decide before year’s end whether to take up the question.

[emphasis added]

It is clear that Special Prosecutor Smith is pretty desperate to keep Trump’s March criminal trial on track.

This is a rapidly developing situation, and we will keep you updated as things develop.


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“Given the weighty and consequential character of the constitutional questions at stake” how is pursuing such frivolous criminal charges against a leading presidential candidate during the course of an election consistent with DOJ policy? In fact, I would expect a fair and impartial Justice Department to never pursue frivolous criminal charges against anyone, presidential candidate or not, but that may be too much to ask from this DOJ. The S.Ct. should not aid the DOJ in its pursuit of injustice.

Ultimately, the Court will weigh in on this question. When they do, they’re almost certainly not going to to take the position that former presidents are immune from prosecution for activity that occurred during their presidency. What’s less certain is if they will take this up on Smith’s schedule. I think that’s far less likely. But, who knows at this point.

Whenever it happens, I do think it will be a development that will continue the downward slope of the Republic. Moving forward, we will see more and more politicians – even presidents – face criminal liability for their actions in office. This is the stuff of banana republics, not mature, well-functioning democracies.

The Court might do well to realize that if the opposition can imprison presidents who don’t toe the line, they might think about imprisoning judges too.

If the Constitution could be rewritten, it would likely be improved by specifying that former presidents can only be criminally prosecuted for actions that resulted in their Impeachment AND REMOVAL from office.

    Concise in reply to TargaGTS. | December 13, 2023 at 12:36 pm

    You’re right. They won’t take the position that former presidents are immune from prosecution for activity that occurred during their presidency. Because that isn’t the issue. That’s the distorted definition of the issue offered by that hack Smith. The issue is whether conduct within the ambit of presidential duties (or ‘outer perimeter’ of his official responsibility”) is immune. It’s not any conduct or activity.

    MarkS in reply to TargaGTS. | December 13, 2023 at 2:09 pm

    Are you trying to be sarcastic? The Constitution already says that so what’s for SCOTUS to do, convince us that it doesn’t mean what it says?

      MattMusson in reply to MarkS. | December 13, 2023 at 2:50 pm

      Saw that Jack Smith has been identified by a whistle blower on a bribery extortion matter.

      TargaGTS in reply to MarkS. | December 13, 2023 at 3:18 pm

      Would you please be so kind as to cite the Article, Clause & Paragraph that speaks directly to this immunity you believes it confers on the president?

      Even the dissent in Nixon v. Fitzgerald cedes that ‘nowhere, however, does the Constitution directly address the issue of Presidential immunity.’

      Whichever way the Court rules, they will be making it because it’s simply not specifically addressed in the Constitution. At best, they’ll perhaps allude to the Separation of Powers clause, as Fitzgerald does. Or, they’ll find Trump enjoys some kind of immunity based on the prohibition of Double-Jeopardy (that he earned when the Senate failed to convict him).

        Concise in reply to TargaGTS. | December 13, 2023 at 4:57 pm

        It is inheres in our constitutional framework and is implicit given the role of the president and separation of powers concerns. And it may interest you to know that with the dissent and a bus token, you can ride the bus.

        mailman in reply to TargaGTS. | December 13, 2023 at 5:38 pm

        Three equal…EQUAL…co branches is the secret here targa.

        If a President can be imprisoned by the judiciary that then means the judiciary is higher than the Presidency and there is no longer three equal co branches.

        Causes all sorts of constitutional issues I would think.

          TargaGTS in reply to mailman. | December 13, 2023 at 6:06 pm

          But, Congressmen and Judges can be – have been – imprisoned even though both enjoy varying, situational immunity in some circumstances…just as POTUS enjoys.

          Smith wants to argue that POTUS doesn’t enjoy any immunity. That’s likely not to prevail. Trump is arguing that he enjoys ‘absolute’ immunity from criminal prosecution (the phrase he used in his own petition to the court). That is also unlikely to prevail. The Court, probably correctly, is going to say that presidents enjoy immunity from criminal prosecution so long as the action was taken inside the ‘outer perimeter’ of his constitutional obligations. Smith will have to convince them that what the government has alleged does just that.

          Concise in reply to mailman. | December 13, 2023 at 7:53 pm

          No, President Trump is not arguing that he enjoys absolute immunity during the term of his presidency. He is arguing, quite convincingly, that immunity extends to presidential acts, and that includes acts within the ‘outer perimeter’ of those duties. It’s the hack Smith and Chutkan who distort the issue.

          henrybowman in reply to mailman. | December 14, 2023 at 11:30 pm

          Illogical argument. You may as well argue that in a game of rock-paper-scissors, no choice should be allowed to vanquish another choice.

I wonder if Smith jumped the shark and petitioned SCOTUS because the Democrats want a ruling in Trump’s favor. If Trump is immune from prosecution while president, then, in the minds of progressives everywhere, so is Scranton Joe!

I’m not a biologist. I’m not even a psychic, but I know how Ketanji Brown Jackson will weigh in. I

I don’t think SCOTUS will take it. They will want the appeals court to rule first.

AF_Chief_Master_Sgt | December 13, 2023 at 1:59 pm

I guess the decision from the SC will tell us whether we have three co-equal branches of government, or if we have a future where every decision the president makes will need to be reviewed and approved by a coterie of lawyers, with advice and approval by the Democratic Party.

Subotai Bahadur | December 13, 2023 at 2:06 pm

Assuming the existence of valid elections in November 2024, this case will be make or break for constitutional rule. If the Coercive Organs of State Power can remove inconvenient candidates whose victory impairs that Power, then Thomas Hobbes comes into play.

Subotai Bahadur

SCOTUS will never rule in Trump’s favor, or put another way, interpret the Constitution as written,…Robert’s disdain for Trump is obvious by his prior rulings, Kavanaugh remembers that assassin sent to his house, ACB, aka, “Snake in the Grass”, has seven children whose safety is paramount to her, Gorsuch envisions himself the next Chief Justice and will refrain for rocking the Senatorial boat,…Trump is screwed

The ONLY reason for Smith to do this is to ensure that they’re going to be able to get their precious show trial before the election.

They’re desperate to avoid it being put off until after the election, or even worse, a Trump victory at the SC right before the election.

Bucky Barkingham | December 13, 2023 at 3:31 pm

The Left and the Establishment want Trump tried, convicted and jailed before the election to keep him off the ballot. Then when Trump supporters take to the streets to protest agents provocateurs will commit violent acts which will be attributed to Trump. The result will be declaration of another Trump inspired “insurrection” and suspension of the November elections. The Left greatest dream will come to fruition.

Is there any relationship between presidential immunity and executive privilege?

What I’m puzzled about is, whether there are privileges accorded to the President (whether traditional or constitutional) that in exercising he would not be immune?

Seems to me like as President, he could well be in possession of evidence of election fraud, but which had not been collated and presented to a court of law yet, that exercising privilege he would ask the state(s) where the evidence of fraud exists to forestall certification / investigate? Meanwhile the Dems hide behind a reluctant and slow-to-respond court system crying “there’s no evidence / proof” all the while trying to block the presentation of evidence and run out the clock on electoral college day.

The correct way to approach this is with a simple question: Who has legal authority over the President during his term for official actions taken during his term? I.e. if he uses his office to commit a crime, who investigates, charges, tries, and convicts. The answer is quite obvious: The Federal Legislature, and *only* the Legislature. To allow state or local bodies to tie up the Executive in endless litigation would render federal officeholders completely powerless. Likewise, ‘official actions’ must be interpreted broadly or the exact same legal warfare would be unleashed on trivial offenses. This extends to supposed offenses taking place during the Federal officeholder’s term (sorry Judge Chunky) or every unpopular Fed upon leaving office would be faced with immediate bankruptcy by biased prosecutors/judges in all the corrupt states they control.

This is nonsense and SCOTUS should have refused. The proper path is to go to the Appeals Court first as everyone else has to do. That Smith is bypassing it in order to speed up everything shows exactly what this is all about, politics.