In a new filing on Saturday, special counsel Jack Smith refuted former President Donald Trump's position that he ought to have complete immunity from prosecution, stating that the broad allegation “threatens to license Presidents to commit crimes to remain in office.”
In the federal election subversion case, Smith's answer to Trump's claim of immunity will be presented prior to the January 9 oral arguments before a US appeals court in Washington, DC.
The prosecution 'threatens… to undermine the very basis of our Republic,' according to the defendant (Br. 1). In contrast, Smith stated in the latest filing that the defendant's argument that he cannot be held accountable for the allegations that, despite losing the election, he made an extraordinary attempt to stay in power by illegal means poses a threat to our Republic's democratic and constitutional underpinnings.
He went on, "To further the public's — and the defendant's — compelling interest in a prompt resolution of this case, this Court should affirm and issue the mandate expeditiously."
In the lawsuit, Trump is charged with four offenses, including obstructing an official procedure and conspiring to defraud the United States. The ex-president entered a not guilty plea.
Pretrial procedures in the federal election subversion case were placed on hold while Trump appealed the district court judge's decision that he should not be immune from prosecution for any possible crimes he may have committed while in office.
The trial was once set to start on March 4. Trump's battle over the immunity claim has highlighted the attorneys for the former president's repeated arguments that the trial should postpone until after the 2024 presidential election in November.
The trial date for Trump may go on as planned if the circuit acts swiftly on these arguments, which the trial judge and special counsel have declared to be untrustworthy.
Smith cautioned in his brief on Saturday that giving a former president this much broad protection is extremely risky.
It is frightening to consider the ramifications of the defendant's broad immunity theory. According to the filing, "he believes that a court ought to consider a President's criminal behavior as exempt from prosecution if it involves communication with a state official regarding a matter involving a federal interest, a meeting with an Executive Branch official, or a statement on a matter of public concern."
"According to that approach, a President who takes a bribe in exchange for steering a lucrative government contract to the payer, a President who directs the FBI Director to sabotage evidence against a political rival, a President who gives the order for the National Guard to kill his most vocal opponents, or a President who sells nuclear secrets to a foreign adversary would not be prosecuted criminally. In all of these cases, the President could claim that he was only carrying out his legal duties, interacting with the Department of Justice, exercising his authority as Commander-in-Chief, or participating in international diplomacy."
Smith also refuted Trump's claim in the petition on Saturday that being charged with a crime would put him under double jeopardy because the Senate cleared him of all charges during the impeachment process.
"This case should go to trial because the defendant advocates for sweeping immunity that a former President does not have," Smith said. "The denial of his motion to dismiss should be affirmed."
He continued, "That clear-cut outcome would not, however, rule out the possibility that a subsequent prosecution could raise challenging issues involving legitimate separation-of-powers concerns."
In the election subversion case, Trump had earlier requested the DC appeals court to reverse a decision made by a lower court that denied his claims of immunity. Smith asked the Supreme Court to consider the case expeditiously, but the Court declined.
Trump's earlier filing restates various claims made by the former president's legal team, including that his indictment is unconstitutional because presidents cannot be criminally prosecuted for "official acts" unless they are impeached and found guilty by the Senate, and that Trump was acting in his official capacity as president to "ensure election integrity" when he allegedly tampered with the 2020 election results.
In an opinion, District Judge Tanya Chutkan dismissed the claims of immunity made by Trump and his legal team, stating that the President's four years as Commander in Chief did not provide him the divine right of kings to avoid the criminal accountability that oversees his fellow citizens.
Smith requests the appeals court to expedite the ruling.
The special counsel's arguments before the appeals court also aim to directly address the ways in which Trump has benefited from possible delays in the prosecution process.
Five days after the decision, the prosecution urged the appeals court to carry out its decision. If approved and the Department of Justice prevails at this stage, the unusual motion would compel Trump's team to file additional appeals with the DC Circuit or the Supreme Court within a few days.
The DOJ prosecutors wrote, "The Government respectfully requests the Court to issue the mandate five days after the entry of judgment, for the reasons given in the Government's motion to expedite appellate review, including the imperative public importance of a prompt resolution of this case." "Any party seeking further review would appropriately be required to do so promptly under such an approach."
Because of his rights as a criminal defendant, the questions in this appeal must be decided by higher courts before Trump's trial can begin, and the appeals process frequently takes months. However, this appeal is already gaining traction almost instantly.
Prosecutors note in Saturday's brief that they have previously persuaded the appeals court to accelerate the case.
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