Unveiling Smith's Stellar Retort to Trump's Immunity Defense
Donald Trump attempted to dismiss the lawsuit against him by Jack Smith, alleging attempts to sabotage the 2020 election, citing "presidential immunity," the most significant plea in this entire case. If this immunity request is granted, not only would the case crumble, but future presidents would potentially rise above the law.
Trump argued that our nation's forefathers intended for presidents to carry out their duties without fear of future political prosecution. He cited various sources, from the Federalist Papers to the Nixon vs. Fitzgerald Supreme Court decision, to support this claim. In the Nixon case, a deferential immunity rule was established, stating that the President is immune from all actions related to their official duties as long as they fall within the "periphery" of their responsibilities.
Trump's argument asserts that as the head of the executive branch on the federal level, he oversaw the executive branch's duty to ensure the legality of federal elections, thus making his actions during the 2020 election exempt from criminal prosecution due to the doctrine of presidential immunity.
However, the prosecutors effectively countered this in their rebuttal and will present their case to the Supreme Court. They highlighted that the Fitzgerald case involved a civil lawsuit and different rules, making it an unsuitable basis for granting Trump absolute immunity. Criminal proceedings are reserved for the gravest offenses in our justice system, and neither Fitzgerald nor any other case establishes such blanket immunity for the President.
Judge Tanya Chutkan, who initially addressed this issue, rightly assembled the side of the government, as she should. Our nation was built on the principle that no one, not even a former President, is above the law, a cornerstone that remains at the heart of our legal system. Gratifying absolute immunity to a President would essentially grant them monarchical powers, which contradicts our history and the principle of a rule of law.
The Department of Justice conducted an analysis, finding that the ramifications of Trump's legal stance "would grant immunity to a President who accepts bribes in exchange for lucrative government contracts from family members, a President who orders the FBI director to plan incriminating evidence against a political adversary, a President who directs the National Guard to assassinate his most prominent critics, or a President who sells nuclear secrets to a foreign adversary." This is fundamentally erroneous.
Although the immunity question has persisted for 234 years of constitutional history, it now rests with the Supreme Court (assuming they accept Smith's petition). As previously discussed, it's absurd to claim that Trump's actions during the 2020 election were insignificant to his presidential responsibilities. A president has no official role in determining national election winners, and the actions in question are political machinations from the losing candidate, not the commander in chief's official duties.
We anticipate that the Supreme Court will side with Chutkan. As she penned in Trump v. Thompson, "The President is not the king, and the plaintiff is not the President," an open rebuke of Trump's argument that the general executive power prevented the committee from submitting his presidential documents on January 6th. This is remarkably similar to Trump's argument that the general executive immunity prevented the Special Counsel from prosecuting him.
The justices will have to contend with another lawsuit from Trump while lower courts also decide the matter. However, lower courts should not delay the process unnecessarily. Trump argues that a President can only be criminally prosecuted if they have previously been indicted and convicted. But this absurd argument is not based on the Constitution, as the Department of Justice has long asserted. We have both served in Congress, one as a counsel for impeachment trials and proceedings against presidents, and we would have been ridiculed for making such an argument. We believe the Supreme Court would have remained silent in such a case.
However, the Supreme Court must act swiftly. Typically, it can take years for such a complex constitutional issue to reach the Supreme Court. Often, one must wait for the entire lengthy trial process.
The nation cannot afford to wait. We must know if a leading presidential candidate has misused their executive authority to maintain their office, an ambition far beyond mere aspiration. This verdict would only be rendered after a jury trial.
In two other precedent-setting cases, United States v. Nixon and Trump v. Trump, the decision on executive privilege was reached within just over three months [2][3]. This encompasses the Supreme Court review. Regardless of the approach the Court chooses, the same accelerated timeline should be adopted to prevent the delay of the March trial.
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A positive sign emerged when the court promptly granted Smith's petition for an expedited consideration of the question of issuing a search warrant. Although this does not imply that the court will hear the merits of the case, it orders Trump to submit his response to the expedited motion by December 20th. Based on Supreme Court standards, this is blazingly fast and an encouraging sign that the immunity question can be resolved swiftly to avoid delaying the March trial.
The looming trial against Trump is not merely personal retribution against him. The verdict could significantly determine whether we continue to have a democracy or a dictator in the White House. Trump's unwarranted defense of absolute immunity must be challenged as soon as possible for the benefit of our nation.
This article was updated following the news that Special Counsel Jack Smith filed a petition at the Supreme Court on Monday.
Related Reading:
According to the Department of Justice (DOJ) and various legal scholars, Donald Trump's claim of absolute immunity from criminal prosecution while in office is unsupported. They argue against this immunity based on several key points:
- Constitutional Text and History:
- The Constitution does not provide immunity protections for the President. The founders explicitly stated that a president is "punishable by the laws of the country" and "not exempt from trial" (as noted in the amicus brief filed by the Constitutional Accountability Center) [1].
- Supreme Court Precedent:
- The Supreme Court has not upheld immunity for the President as a defense against criminal prosecution. In fact, they have ruled that while a former president might enjoy some immunity, it is not absolute and is limited to actions within the president's exclusive constitutional authority [1][2].
- Separation of Powers:
- The Constitution's separation of powers was designed to prevent concentration of power and protect against autocracy. Granting absolute immunity to the President would undermine this principle, allowing for unchecked executive power [1].
- Practical Consequences:
- Justice Ketanji Brown Jackson warned in her dissent that granting such immunity would lead to a "five-alarm fire" that threatens democratic self-governance and the normal operations of government. She emphasized that the consequences of such a ruling would be lawlessness and a breakdown of accountability [1].
- Accountability Mechanisms:
- The absence of immunity would provide an essential check on the President's actions, guaranteeing accountability for their conduct. Without this accountability, the President might engage in actions detrimental to the country and its institutions [1][2].
In summary, the DOJ and legal scholars argue that granting Donald Trump absolute immunity from criminal prosecution during his presidency is unconstitutional, undermines the separation of powers, and would lead to a lack of accountability, potentially threatening democratic governance.
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The Department of Justice (DOJ) and various legal scholars argue against granting Donald Trump absolute immunity from criminal prosecution while he was President based on several key points. Some of these arguments include:
- The Constitution does not provide immunity for the President, and the Founding Fathers explicitly stated that a president is "punishable by the laws of the country" and "not exempt from trial." [1]
- The Supreme Court has not upheld the President's claim of absolute immunity against criminal prosecution and has ruled that while a former president may have some immunity, it is not absolute and is limited to actions within their exclusive constitutional authority. [1][2]
- The separation of powers is a principle of the Constitution designed to prevent the concentration of power and protect against autocracy. Granting absolute immunity to the President would undermine this principle, allowing for unchecked executive power. [1]
- Justice Ketanji Brown Jackson warned that granting presidential immunity would result in a "five-alarm fire" that threatens democratic self-governance and the normal operations of government. She emphasized that the consequences of granting such immunity would be lawlessness and a breakdown of accountability. [1]
- The absence of immunity would provide an essential check on the President's actions, guaranteeing accountability for their conduct and preventing the President from engaging in actions detrimental to the country and its institutions. [1][2]
[1] CNN, (2023, April 14). Opinion: Jack Smith’s brilliant response to Trump’s immunity defense.
[2] Constitutional Accountability Center, (2023, April 14). Amicus Brief Filed in Support of Jack Smith’s Request to the Supreme Court to Unveil President Trump's White House Records.
[3] U.S. Constitution Online, (2023, April 14). Separation of Powers.
