Special counsel Jack Smith's team is urging the Supreme Court to reject former President Donald Trump's claim that he is immune from prosecution in a case charging him with scheming to overturn the results of the 2020 presidential election.
The brief from prosecutors was submitted on Monday night just over two weeks before the justices take up the legally untested question of whether an ex-president is shielded from criminal charges for official actions taken in the White House.
“A President’s alleged criminal scheme to use his official powers to overturn the presidential election and thwart the peaceful transfer of power frustrates core constitutional provisions that protect democracy,” they wrote.
The outcome of the April 25 arguments is expected to help determine whether Trump faces trial this year in a four-count indictment that accuses him of conspiring to block the peaceful transfer of power after losing the 2020 election to Democrat Joe Biden.
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Trump has argued that former presidents enjoy immunity for official acts in office. Both the judge presiding over the case, Tanya Chutkan, and a three-judge federal appellate panel in Washington have forcefully rejected that claim.
The Supreme Court then said it would take up the question, injecting uncertainty into whether the case — one of four criminal prosecutions confronting Trump, the presumptive Republican nominee for president — can reach trial before November's election.
In their latest brief, Smith's team rehashed many of the arguments that have prevailed in lower courts, pointedly noting that “federal criminal law applies to the president.”
“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” Smith's team wrote.
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Prosecutors also said that even if the Supreme Court were to recognize some immunity for a president's official acts, the justices should nonetheless permit the case to move forward because much of the indictment is centered on Trump's private conduct.
Smith's team suggested the court could reach a narrow determination that Trump, in this particular case, was not entitled to immunity without arriving at a broader conclusion that would apply to other cases.
“A holding that petitioner has no immunity from the alleged crimes would suffice to resolve this case, leaving potentially more difficult questions that might arise on different facts for decision if they are ever presented,” they said.
