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Special Counsel Jack Smith has dropped a new filing with the U.S. Supreme Court that he hopes will further his prosecution of former President Donald Trump.
Smith wants the nation’s highest court to reject Trump’s claim that he’s immune from prosecution for actions he took on Jan. 6, 2020, the day of the riot at the U.S. Capitol Building. The special counsel has filed charges against him alleging felonious election subversion activity, which Trump has vehemently denied.
In his brief to the Supreme Court, Special Counsel Smith argues that Trump has presented a “novel and sweeping” theory of immunity devoid of any prior historical precedent, contending that his theory conflicts with the founding father’s vision of the nation.
“The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law,” the brief reads. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law—including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that the petitioner seeks.”
Smith’s argument aims to rebut former President Trump’s allegations that his prosecution is politically motivated by highlighting the “layered safeguards” already present in the U.S. criminal justice system, which are supposedly intended to prevent abuses of power and ensure fairness in legal proceedings.
That said, it should be noted that no former president has been charged with such crimes. In the case of Trump’s classified documents, former presidents, U.S. senators, and vice presidents have also been caught with such materials, but they were not similarly charged.
The brief stated that the government must present its case and meet its burden of proof in a public trial, the courts must uphold due process protections to prevent politically motivated prosecutions, and the Executive must bring a criminal prosecution with strong institutional checks to ensure fair and impartial enforcement of the law.
The special counsel also criticizes Trump for proposing a “radical suggestion” that presidents should be guaranteed immunity from prosecution for any criminal actions committed while in office. The argument contends that such a proposition “would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition.”
“The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Trump’s] alleged conduct,” they write. “And none of the dissimilar historical examples on which the petitioner relies suggests otherwise.”
In the special counsel’s brief, Smith also requests that if the court ultimately determines that a former president should be granted some form of immunity from prosecution, it should not preclude the government from proceeding with its case against Trump in court.
“First, the specific form of criminal conduct charged here—efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process for electing the President—does not justify any form of immunity. Second, the private conduct that the indictment alleges is sufficient to support the charges,” the filing reads.
“Thus, even if liability could not be premised on official acts, the case should be remanded for trial, with the district court to make evidentiary and instructional rulings by this Court’s decision. Petitioner could seek appellate review of those rulings, if necessary, following final judgment,” the filing added.
The justices have scheduled oral arguments in the matter for April 25. Trump’s team has argued that a finding in favor of Smith would mean that future presidents likely could and would be hauled into court for actions taken during their terms in office.
