WASHINGTON (CN) — Special counsel Jack Smith told the Supreme Court on Monday that rejecting Donald Trump’s presidential immunity claim was essential to upholding the nation’s bedrock principle that no one is above the law.
“The president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” Michael Dreeben, counselor to the special counsel, wrote in Smith’s brief.
Smith charged Trump with four criminal counts for conspiring to overturn the 2020 election. Trump is accused of attempting to use fake electoral votes and obstructing the peaceful transfer of power.
Trump has made sweeping immunity arguments that he claims protect him — and all other former presidents — from criminal prosecution.
Smith told the Supreme Court that Trump’s presidential immunity claim was antithetical to the constitutional text, history and precedent of the nation. He said that the effective functioning of the presidency relied on their rejection of Trump’s presidential immunity claim, noting that the charges against the former president reflected “an unprecedented assault on the structure of our government.”
“The effective functioning of the presidency does not require that a former president be immune from accountability for these alleged violations of federal criminal law,” Dreeben wrote. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law — including the president.”
The special counsel reminded the court that Trump is a former president no longer entitled to the immunity granted to current officeholders. However, even if Trump was in office, Smith argues that no president would be immune from defrauding the United States and denying citizens their right to vote.
Smith said Trump’s version of presidential immunity would free the executive officeholder from all criminal charges including bribery, murder, treason and sedition. The special counsel said the idea of permanent immunity for these crimes would upset the separation of powers and usher in a regime that would have been anathema to the framers.
“The framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers,” Dreeben wrote.
Last month Trump urged the justices to dismiss his election subversion charges based on a presidential immunity claim. The former president cites Fitzgerald v. Nixon, which gave Richard Nixon immunity from a civil suit while president. Trump’s immunity innovation, however, would further expand Fitzgerald, applying it to not only civil suits but also criminal charges.
Two lower courts have already rejected these arguments but the Supreme Court’s decision to hear arguments over the issue later this month further delayed a trial on the charges. U.S. District Court Judge Tanya Chutkan — who is presiding over Trump’s D.C. trial — characterized his immunity defense as a lifelong “get-out-of-jail-free” pass for former presidents.
Anticipating an appeal, Smith brought the justices the presidential immunity question in December. The Supreme Court refused to hear the case before the D.C. Circuit heard arguments.
The D.C. Circuit also denied Trump’s immunity defense, noting that for the purposes of this case, he was “citizen Trump.”
Although neither lower court ruled in Trump’s favor, the appeal delayed his D.C. trial start date, which was originally scheduled for early March. The Supreme Court agreed to hear Trump’s appeal in February but did not schedule arguments until late April. The D.C. trial will be on pause until the court issues an opinion, which could come as late as the end of June.
Trump already prevailed in one Supreme Court duel this term, convincing the justices to put him back on presidential primary ballots.
The justices will hear arguments on Trump’s immunity appeal on April 25.
Follow @KelseyReichmann
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