WASHINGTON (CN) — Former President Donald Trump presented his argument for absolute immunity from criminal prosecution to the Supreme Court on Tuesday, insisting the justices must dismiss his indictment on election subversion charges to keep the authority of the executive branch intact.
The former president’s brief implores the justices to grant him immunity or risk turning presidential prosecutions into a political cudgel to influence executive branch decisions.
“A denial of criminal immunity would incapacitate every future president with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” John Sauer, an attorney with James Otis Law Group, wrote in Trump’s brief.
In April, the Supreme Court will review Trump’s defense to his four-count indictment. Special counsel Jack Smith charged Trump with conspiring to overturn the 2020 election, accusing him of attempting to use fake electoral votes and obstructing the peaceful transfer of power.
Claiming all of these actions were part of his role as president, Trump argues he has presidential immunity that prevents any court from criminally prosecuting him.
Trump cites the executive vesting clause as the source of his presidential immunity. He also claims the court’s ruling in Marbury v. Madison prohibits the court from ever examining official presidential acts.
In 1982, the Supreme Court issued a favorable ruling to Richard Nixon, finding that presidents cannot face civil liability for presidential actions. Trump wants to expand Fitzgerald v. Nixon to criminal charges.
“The court should restore the tradition from Marbury to Fitzgerald — unbroken until last year — and neutralize one of the greatest threats to the president’s separate power, a bedrock of our republic, in our nation’s history,” Sauer wrote. “The court should uphold the president’s immunity from criminal prosecution for official acts.”
No former president has ever been criminally prosecuted for their official acts. Trump claims this is a sign that this prosecutorial power does not exist. Pandering to the originalists on the court, Trump adds that criminal immunity is more deeply rooted in the common law than civil immunity.
Trump seems to cite House Republicans' effort to impeach President Joe Biden as a reason for the court not to go down this path. He said that once one president is criminally prosecuted the rest will be too.
“As the recent history of impeachment demonstrates, once our nation crosses this Rubicon, every future president will face de facto blackmail and extortion while in office, and will be harassed by politically motivated prosecution after leaving office, over his most sensitive and controversial decisions,” Sauer wrote. “That bleak scenario would result in a weak and hollow president, and would thus be ruinous for the American political system as a whole.
Trump claims that the only way for a president to be criminally prosecuted is through conviction by the Senate of impeachable acts. The former president describes this as a formidable structural check against politically motivated prosecutions.
These arguments make Congress the key player in holding presidents accountable. He said lawmakers have yet to officially say presidents can be criminally prosecuted and none of the statutes he has been charged with contain clear statements applying them to presidents.
The former president urges the court to dismiss his indictment but suggests other options if the justices do not want to take that step. Trump thinks the court should extend the presidential immunity in Fitzgerald to the outer perimeter of the president’s official acts. He also states this protection should be absolute.
Trump claims an absolute immunity ruling would benefit the court as well, keeping out of future political disputes.
If the court decides to create a test for how to determine if presidential actions are immune, Trump urges the lower court to be the arbiters of this inquiry. Instead of the justices reviewing Trump’s actions, the former president wants the court to remand and allow the lower courts to review the issue. This would further delay Trump’s trial on the election subversion charges.
Another option for the court would be to grant Trump a form of qualified immunity. Trump does not want the justices to take this route but says if they do, it should be “extraordinarily, and almost completely, broad.”
The D.C. Circuit denied Trump presidential immunity because it found his actions to be part of his effort to remain in power unlawfully. Trump said the court should reject this view because it violates the holding that the courts can never examine official acts.
Trump said all first-term presidents are motivated to be re-elected so focusing on intent would encompass all presidents.
“Worst of all, this approach risks creating the appearance of a gerrymandered ruling tailored to deprive only President Trump of immunity, while leaving all other presidents untouched,” Sauer wrote.
While Smith and the D.C. Circuit said absolute immunity would put the president above the law, Trump argues that impeachment is still a viable path for accountability.
Trump claims that the founders preferred to take a risk that some presidents might escape punishment in favor of condemning the whole branch.
“The Founders viewed protecting the independence of the presidency as well worth the risk that some presidents might evade punishment in marginal cases,” Sauer wrote. “They were unwilling to burn the presidency itself to the ground to get at every single alleged malefactor.”
The Supreme Court will hear arguments on the case April 22.
Follow @KelseyReichmann
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
Additional Reads
-
Xi tells Blinken US, China should be ‘partners, not rivals’ April 26, 2024 -
A dangerous man named Kennedy April 26, 2024
