Jack Smith asks Appeals Court to reject Donald Trump’s immunity claim

Special counsel Jack Smith claims Donald Trump’s defence ‘threatens to license presidents to commit crimes to remain in office.’

Donald Trump speaks to the media. Picture: AFP.

Special counsel Jack Smith asked a federal appeals court on Saturday to reject Donald Trump’s claim that he is immune from prosecution on charges he plotted to overturn the 2020 election, arguing that his defence “threatens to license Presidents to commit crimes to remain in office.” In an 82-page court filing, the special counsel’s team used some of its most strident language to date in a bid to bolster the first-ever federal prosecution of a former president. Declaring flatly that Trump is wrong, prosecutors said separation-of-powers principles, legal precedent and history combined to “make clear that a former President may be prosecuted for criminal acts he committed while in office — including, most critically here, illegal acts to remain in power despite losing an election.”

“The Presidency plays a vital role in our constitutional system, but so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process,” federal prosecutors wrote. Trump’s “sweeping immunity claim” would leave any president free to break the law to stay in office, they wrote, adding: “The Founders did not intend and would never have countenanced such a result.”

Special counsel Jack Smith speaks to reporters. Picture: AFP.

The filing came in response to a filing from Trump’s legal team a week earlier, ahead of oral arguments slated for Jan. 9 before the powerful U.S. Court of Appeals for the D.C. Circuit. In that filing, Trump lawyer D. John Sauer wrote: “Under our system of separated powers, the Judicial Branch cannot sit in judgment over a President’s official acts. That doctrine is not controversial.”

He also argued that Trump’s acquittal by the Senate, in impeachment proceedings that followed the Jan. 6, 2021, attack on the Capitol, rendered any indictment of him on charges related to that conduct “unlawful and unconstitutional.” Countering that double-jeopardy argument, prosecutors asserted Saturday that the law “does not make conviction at a Senate trial a condition precedent to criminal prosecution, which serves a function distinct from impeachment and removal.” Prosecutors pointed to President Nixon’s acceptance of a pardon in 1974 as reflecting the “consensus view” that a former president can face prosecution after leaving office.

In the court filing last week, Trump’s legal team said the case against the former president threatened to open an era of politically motivated prosecution and “stands likely to shatter the very bedrock of our Republic — the confidence of American citizens in an independent judicial system.” “To the contrary,” prosecutors said Saturday after quoting that line. “It is the defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election, that threatens the democratic and constitutional foundation of our Republic.” The legal wrangling between Trump’s and Smith’s respective teams stems from a Dec. 1 ruling in which District Judge Tanya Chutkan rejected the former president’s immunity claims, ruling that his former office doesn’t “confer a lifelong ‘get-out-of-jail’ pass.” Following Trump’s appeal to the D.C. Circuit, Chutkan temporarily froze the proceedings, heightening the chances that the former president’s trial would be delayed beyond its scheduled March 4 start date.

In a bid to fast-track a resolution of Trump’s appeal, Smith’s team took the extraordinary step of attempting to bypass the D.C. Circuit and have the Supreme Court take up the immunity claims immediately. The Supreme Court turned down that request on Dec. 22, but the case is expected to eventually reach the justices.

In the D.C. Circuit, the Jan. 9 arguments are set to unfold before a three-judge panel. Trump’s legal team has a Tuesday deadline to respond to Smith’s court filing.

Dow Jones