Trump is Not Immune from Prosecution - Jack Smith - Special Counsel

 

The United States Supreme Court will soon hear argument in a case in which it has granted a petition for review pre-trial.  Case, No. 23-393 is United States v. Donald J., Trump, prosecution  for charges arising from his role in the attempted obstruction of the lawful transfer of power after he lost the 2020 Presidential election.

On February 6, 2024, in his application to the Supreme Court for a stay of trial, posed two questions for the Court:

The questions presented are: I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)). II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges. 

The Court granted the stay but reframed the questions  presented as:

Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.

In his Brief for the United States To this the Special Counsel Jack Smith has a plain answer:  

I. A former President lacks immunity from federal criminal prosecution for official acts during his presidency  
A. A claim of absolute criminal immunity for a
former President’s official acts violates
established separation-of-powers principles
B. History supports the conclusion that former
Presidents are subject to prosecution for official
acts.

The Court earlier this year declined a request by Smith to rule quickly on the issue. but the Court ordered that the District of Columbia Circuit Court of Appeals first rule on the issues.  The Court did.  This appeal by Trump followed.  the delay i consequential.  A decision is unlikely until the end of June, making trial and judgment before the November election doubtful.  Should Trump be re-elected he could order dismissal of all charges by the Attorney General whom he appoints.

- GWC 4/11/24