'No person is above the law': Special counsel tells Supreme Court why Trump should be prosecuted

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WASHINGTON − No president before Donald Trump has suggested the Constitution grants him criminal immunity and the Supreme Court shouldn’t now find that it does, special counsel Jack Smith said Monday.

Laying out his argument in a landmark case being argued later this month, Smith, in a legal brief to the Supreme Court, said granting Trump criminal immunity would be a radical legal precedent.

Citing examples from history that brought the U.S. to the edge of a Constitutional crisis, Smith pointed out in his brief that President Gerald Ford pardoned Richard Nixon precisely because he otherwise faced prosecution.

Likewise, he argued, the special counsel that investigated the Iran-Contra affair considered whether President Ronald Reagan’s actions were criminal.

“The absence of any such absolute-immunity claim throughout our history weighs heavily against its novel recognition now,” Smith wrote in the brief, The legal filing comes ahead of the Supreme Court’s April 25 oral arguments in Trump’s appeal of a decision that he’s not immune from prosecution.

Trump, the presumptive GOP nominee for president, wants the Supreme Court to dismiss his indictment on federal charges he tried to steal the 2020 election, arguing criminal prosecution presents a “mortal threat” to the independence of the presidency.

“The President cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office,” Trump’s lawyers told the court last month in his major brief before the oral arguments. They'll get a chance to respond to Smith's arguments in their final legal filing before facing the nine Supreme Court justices.

Three of those nine justices were appointed by Trump when he was president, giving the Court a conservative supermajority comprised of six people appointed by Republicans.

Supreme Court may not reach a quick decision on Trump case

Even if Trump loses his appeal, the Supreme Court may not reach a decision quickly enough for a trial to proceed in time for a verdict before the November election.

Trump has offered the court an option to delay his trial further.

For example, if the justices decide that immunity for acts taken while in office require a fact-based approach – such as whether Trump was acting in his official or personal capacity during his allegedly criminal acts − then they should send the case back to the lower courts to make that determination, “including conducting any fact-finding necessary to the determination prior to any further proceedings in the case,” his lawyers have argued.

Trump would have to convince a court that his bid to use fake electors and a high-pressure phone call where he pressed the Georgia secretary of state to “find” 11,780 votes were part of his official duties as president. But whatever the appeals court ruled, the exercise would still delay his trial in the federal election case.

More: Donald Trump loses request to delay Manhattan hush money trial pending location change request

Former President Donald Trump arrives at 40 Wall Street after his court hearing to determine the date of his trial for allegedly covering up hush money payments linked to extramarital affairs in New York City on March 25, 2024.
Former President Donald Trump arrives at 40 Wall Street after his court hearing to determine the date of his trial for allegedly covering up hush money payments linked to extramarital affairs in New York City on March 25, 2024.

Smith countered Monday that Trump’s trial should not be postponed.

Even if the Supreme Court finds that former presidents have some form of immunity that may apply to the charges against Trump, the district court can make evidentiary rulings and craft appropriate jury instructions, Smith said. Trump could appeal those rulings, but only after the trial concludes.

Smith also argued that any immunity former presidents enjoy for official acts would not apply to Trump because attempting to overturn an election and thwart the peaceful transfer of power is the “paradigmatic example of conduct that should not be immunized, even if other conduct should be.”

Trump has pleaded not guilty to four federal charges in the case before the Supreme Court − three for conspiracy and one for obstruction − for falsely claiming election fraud and trying to overturn the legitimate election results.

Trump has repeatedly claimed that the charges are politically motivated. If he returns to the White House, he could appoint an attorney general who would seek to dismiss any pending federal charges. Trump could also simply pardon himself, although his power to do so is debated.

But Trump’s preferred outcome is for the Supreme Court to entirely dismiss the indictment, an outcome experts say is unlikely.

While former presidents have broad immunity from civil lawsuits for official actions taken while serving in the White House, Trump has attempted to claim sweeping immunity from criminal prosecution.

Smith told the court that “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,” Smith said, “supports the absolute immunity that petitioner seeks.”

This article originally appeared on USA TODAY: Special counsel asks Supreme Court to reject Trump's immunity claim