Special Counsel Jack Smith pressed his case that former President Donald Trump does not enjoy the protections of “presidential immunity” in the 2020 election conspiracy criminal case in an 82-page court document filed Saturday afternoon in D.C.’s federal court of appeals.
Smith’s filing comes one day after an appeals court allowed a lawsuit brought by a group of U.S. Capitol Police officers against Trump to move forward, ruling Trump is not entitled to absolute immunity from civil lawsuits. The suit focuses on Trump’s alleged conduct surrounding the Jan. 6, 2021, assault on the U.S. Capitol.
Smith’s latest filing comes ahead of scheduled oral arguments on the matter at the Appeals Court for the D.C. Circuit on Jan. 9, 2024. U.S. District Judge Tanya Chutkan, who is presiding over the case, ruled Trump cannot be shielded from federal prosecution for crimes allegedly committed while he was in the White House.
The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to 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, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers-thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability.
