WASHINGTON (CN) — In a motion filed Thursday night, special counsel Jack Smith fired back against former president Donald Trump’s claim that the federal case accusing him of trying to maintain his grip on power should be thrown out because his actions were protected under presidential immunity.
“The defendant is not above the law. He is subject to the federal criminal laws like more than 330 million other Americans, including members of Congress, federal judges, and everyday citizens,” wrote assistant special counsel James Pearce.
Pearce argues that Trump’s lawyers were wrong in arguing that Trump’s conduct following his 2020 electoral defeat — specifically his claims of widespread voter fraud and other efforts to overturn the election which led to his four criminal charges in Washington — were well within the “outer perimeter” of the president’s official duties and thus should protect him from prosecution.
John Lauro, Trump’s lead lawyer in Washington, wrote in the Oct. 5 motion that Trump was merely trying to advocate for and ensure the integrity of the 2020 election. Lauro also comparing Trump’s public comments on the issue to George Washington’s Farewell Address and Abraham Lincoln’s Gettysburg Address, arguing that presidential statements related to federal elections “fall in the heartland of his or her official duties.”
Pearce denounced that comparison in no uncertain terms.
“These things are not alike,” he wrote.
A more apt parallel would be to judges, who have immunity from civil damages for certain judicial conduct but are still subject to criminal prosecution like any other citizen, Pearce argued.
The response comes days after U.S. District Judge Tanya Chutkan, the federal judge overseeing Trump’s case in Washington, imposed a limited gag order against all parties in the case on Monday.
While the order applies to the special counsel’s office, Trump and his team, it is specifically intended to prevent Trump from continuing to issue inflammatory statements and the threats from his supporters that follow.
Trump appealed the order on Tuesday; it is not yet clear whether the D.C. Circuit will consider the appeal and how it may impact the scheduled start to the trial set for March 4, 2024.
Pearce notes that Trump’s request, much like the case itself, is novel in the fact that it seeks to upend the fundamental principle that “no one in this country, not even the president, is above the law.”
Lauro had also raised a unique understanding of the impeachment process, arguing that conviction in the Senate is necessary for further criminal prosecution, and because Trump was twice acquitted — following impeachment in the House over his quid-pro-quo dealings with Ukraine and his incitement of the Capitol riot — he is therefore immune.
Pearce decried that interpretation, saying it “would effectively preclude any form of accountability for a president who commits crimes at the end of his term of office.”
Even Trump himself has spoken against that idea, namely in his arguments against his second impeachment trial in February 2021, where he called the idea “nonsense” and a “complete canard,” as he was already out of office and was then subject to criminal prosecution.
“At his impeachment trial, the defendant argued that he could not be convicted by the Senate because he was no longer in office but that he was subject to post-presidency prosecution, and he now — when facing such a prosecution — argues that he cannot be prosecuted for criminal offenses concerning conduct while he was in office because he was not convicted by the Senate for that conduct,” Pearce said.
He also rejected Lauro’s argument that the precedent set in Nixon v. Fitzgerald — which established immunity from civil liability for official conduct as president — should be extended to cover criminal liability as well. In Pearce’s view, a president’s civil immunity and temporary criminal immunity while in office hinges on the fact that they are again open to criminal prosecution once no longer president.
Even if Trump can claim such expanded immunity, it still does not mean dismissal is appropriate, Pearce wrote, as he “cannot plausibly claim that every allegation in the indictment involves acts within the outer perimeter of a president’s official responsibility.”
Lauro did not respond to a request for comment.
Earlier on Thursday, Sidney Powell, a member of Trump’s inner circle who was at the forefront of his efforts to overturn the 2020 election, pleaded guilty to six misdemeanor conspiracy charges in Fulton County, Georgia. As part of the deal, she agreed to testify truthfully in the case where Trump and 17 of his other allies face state charges over their attempts to interfere with the election in the state.
Powell’s plea deal comes just a day before jury selection begins for co-defendant Kenneth Chesebro’s trial, where Powell will likely testify as a witness. She will likely appear in future trials, including Trump’s, and her testimony could impact the case in Washington.
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