Former President Donald Trump is urging the Supreme Court to recognize that former presidents should have extensive immunity from criminal prosecution for any actions they took while in office. He argues that the lack of prosecution against his predecessors over the years is evidence that this power does not exist.
According to Trump’s lawyers, there has never been a case where a former or current president has faced criminal charges for their official actions from 1789 to 2023. They argue that this is for a valid reason – the president and the presidency as a whole need to maintain their essential independence, and it would be detrimental if the president could be prosecuted for their official acts after leaving office.
In his 51-page filing, lawyer D. John Sauer is urging the Supreme Court to reverse the lower court’s decision that denied his claim of immunity and dismiss the charges filed against him.
According to Sauer, the Supreme Court’s decision on presidential immunity will have far-reaching consequences that extend beyond Trump. He emphasizes that this decision will shape the presidency for the entirety of our nation’s history.
He argued against adopting a rule that would give the impression of a gerrymander solely benefiting President Trump, stating that it would go against the principles of the rule of law.
The legal battle over immunity
The Supreme Court has recently granted a review of a decision made by the federal appeals court in Washington. This decision found that Trump could face prosecution for his alleged attempts to undermine the transfer of presidential power after the 2020 election. The court has scheduled arguments for April 25th.
The justices are currently deliberating on the extent of a former president’s immunity from criminal prosecution for alleged official acts during their time in office. This question raises the issue of whether a former president, like Trump, can be charged with a crime without first being impeached by the House and convicted by the Senate. It is important to note that the focus of their consideration is not on Trump’s specific claim regarding impeachment.
Special counsel Jack Smith, who is prosecuting Trump, has argued that the former president engaged in fraudulent conduct to maintain his position in office. Smith has strongly cautioned against granting Trump immunity from criminal liability for his attempts to overturn his electoral defeat, stating that such a move would go against fundamental constitutional principles and pose a threat to democracy. We can expect a brief from Smith regarding this matter on April 8.
The Supreme Court has previously established that presidents are protected from civil liability, but it has not yet addressed the issue of whether a former president can be criminally charged for actions performed within their official duties. This makes Trump the first former president to face criminal charges, to which he has pleaded not guilty.
The immunity issue being reviewed by the Supreme Court has already affected two other criminal cases involving Trump. One is taking place in a New York state court, while the other is in a federal court in South Florida.
In the case in New York, Trump’s lawyers have requested a Manhattan judge to postpone the trial until after the Supreme Court makes a ruling on whether or not he is protected from criminal prosecution. Trump has pleaded not guilty to charges of falsifying business records.
In South Florida, Trump is being accused by Smith of mishandling 40 counts of sensitive government documents after he left the White House. The former president is currently seeking to have the charges dismissed on the grounds of immunity and has pleaded not guilty.
The D.C. case has been on hold since December while Trump appealed U.S. District Judge Tanya Chutkan’s decision that rejected his claim of broad immunity. The case will continue to be paused until the Supreme Court issues its ruling, anticipated by the end of June.
If the court decides in Trump’s favor, it would put an end to Smith’s prosecution of the former president in Washington. However, if the court determines that Trump is not entitled to legal protections and allows the criminal case to continue, it remains uncertain whether a trial could occur before the 2024 presidential election. This is significant considering that both Trump and President Biden are the presumptive presidential nominees for their respective parties.
In December, Smith sought the intervention of the Supreme Court in the ongoing dispute regarding whether Trump can be held criminally liable. However, the justices decided not to expedite the case, allowing the federal appeals court to address the issue before them.
In early February, a three-judge panel made a ruling stating that Trump does not have the privilege of presidential immunity when it comes to federal prosecution for what is considered as “official acts.”
“In this criminal case, citizen Trump is being treated like any other criminal defendant,” stated the panel in its opinion. The D.C. Circuit has granted Trump until February 12th to seek a halt to the decision from the Supreme Court, leading to the current showdown before the justices.
Trump’s arguments to the Supreme Court
Trump’s legal team argued that if a former president can be charged with crimes, it would set a precedent that could impact future presidents. They pointed to the fact that Trump was impeached twice by the House during his term but was acquitted by the Senate in both instances. The recent impeachment proceedings initiated by Congress over the past 26 years were cited as evidence of the potential ramifications of allowing criminal charges against a former president.
Sauer argued that if our nation were to cross this Rubicon, it would set a dangerous precedent. Every future president would be subjected to de facto blackmail and extortion while in office and face politically motivated prosecution after leaving office for their most sensitive and controversial decisions. This would ultimately lead to a weak and hollow President, which would be detrimental to the American political system as a whole.
According to his argument, the current decision-making process of the presidency will be severely hindered by the looming threat of future prosecution. He further asserts that this threat poses a significant danger to the independence of the presidency itself.
During the court proceedings, Sauer emphasized that the criminal statutes under which Trump is accused of violating do not explicitly state their applicability to the president or actions carried out during the tenure in office.
In the filing, Sauer argues that Congress did not intend to incite a clash between branches of government by eliminating presidential immunity and permitting the prosecution of the president under broad and ambiguously worded criminal laws.
According to his argument, federal courts do not possess the authority to pass judgment on a president’s official acts in criminal cases.
According to Trump’s lawyer, the courts are unable to scrutinize the President’s official actions. As a result, they are incapable of bringing charges, issuing a verdict, or imprisoning him based on those official acts. Moreover, they lack the authority to conduct a jury trial solely on the grounds of his official acts.
He reiterated his argument that a president cannot face prosecution unless the House impeaches him and the Senate convicts him.
The Supreme Court has taken up several cases involving Trump, including the immunity case. Just recently, the court made a significant ruling overturning the Colorado Supreme Court’s decision to remove Trump from the state’s presidential primary ballot. This ruling was based on an obscure provision of the Constitution. The court unanimously ruled that states cannot prevent Trump from being on the ballot using Section 3 of the 14th Amendment. However, there was a split among the justices regarding whether only Congress could enforce this clause.
The Supreme Court will also listen to arguments on April 16 regarding the extent of a federal obstruction law. This law has been utilized to prosecute numerous defendants accused of involvement in the January 6, 2021, assault on the U.S. Capitol. Trump faces charges for violating this statute, and the court’s ruling may affect the validity of this count and another charge.
