Jack Smith blasts Trump’s presidential immunity claims

Special counsel Jack Smith slammed Donald Trump’s claims that he is shielded from prosecution over the 2020 election as a “license” for future presidents to break the law.

In an 82-page filing Saturday, Smith tore into Trump’s presidential immunity claims, which his legal team has argued should void his conspiracy and obstruction charges altogether, and warned such a precedent would give future presidents carte blanche to commit crimes.

“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,” Smith’s team wrote.

“The defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office. The Founders did not intend and would never have countenanced such a result.”

Last week, Trump’s legal team laid out its opening brief to the DC Circuit Court of Appeals, which is set to convene a three-judge panel that will hold oral arguments in the case on Jan. 9, 2024.

Trump’s lawyers made two key arguments. First, he enjoys “absolute immunity from prosecution for his official acts as President” and second “a President who is acquitted by the Senate cannot be prosecuted for the acquitted conduct.”

In his rebuttal, Smith contended that “both arguments also threaten to undermine democracy.”

Smith rattled through a string of legal precedents and theories to buttress his rebuttal.

Perhaps most notably, he drew attention to former President Gerald Ford’s controversial unconditional pardon of Richard Nixon in 1974.

“No historical materials support the defendant’s broad immunity claim, and the post-Presidency pardon that President Nixon accepted reflects the consensus view that a former President is subject to prosecution after leaving office,” Smith’s team insisted.

Smith’s team also rebuffed the assertion that Trump’s acquittal during the second impeachment for incitement of an insurrection precludes him from criminal prosecution over that matter under “double jeopardy” — a clause in the Fifth Amendment that prevents individuals from being prosecuted twice over the same crime.

“[The Impeachment Judgment Clause] does not make conviction at a Senate trial a condition precedent to criminal prosecution, which serves a function distinct from impeachment and removal,” the filing said.

Technically, Trump is not charged with inciting an insurrection by Smith in his four-count indictment over his actions revolving around the Capitol riot and the 2020 election.

“The indictment charges different offenses than were at issue in his impeachment,” Smith’s team underscored.

The charges instead entail two counts related to obstruction, one count of conspiracy against civil rights, and one count of conspiracy to defraud the US government.

Further accentuating his point about the “sobering” implications of Trump’s claims that he’s shielded from prosecution, Smith gave some stark examples of conduct future presidents may attempt to justify.

“A President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary,” prosecutors wrote.

“In each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice.”

District Judge Tanya Chutkan, who is overseeing Trump’s four-count indictment, previously sided with Smith’s team in the immunity argument.

She contended that the 45th president was not entitled to a “lifelong get-out-of-jail-free pass.” Chutkan also put “any further proceedings that would move this case towards trial” on pause amid the appeal of her decision.

Earlier this month, Smith’s team sought to leapfrog over the appeals court by having the Supreme Court fast-track the case to prevent any delays in Trump’s prosecution. But the high court rejected that bid.

The case before the appeals court is quite novel and examines a largely untested area of constitutional law. It will almost certainly get appealed to the Supreme Court.

Although largely unsaid, Smith’s team has seemingly been concerned that delaying the trial in the matter — previously slated for March 4, 2024 — could benefit Trump.

Should he prevail in the 2024 election, he will enjoy several potential avenues to quash the case against him altogether such as a potential pardon.

Trump is facing a total of 91 criminal counts spanning across four federal and state indictments. He has pleaded not guilty and denied wrongdoing in all of them.