The immunity question

Jack Smith (through Michael Dreeben) has filed the government's response to Trump's ridiculous claim of immunity from prosecution.

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“Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license Presidents to commit crimes to remain in office,” Smith and his team wrote in an 82-page filing. “The Founders did not intend and would never have countenanced such a result.”

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“Any burdens of post-Presidency criminal liability have minimal impact on the functions of an incumbent and are outweighed by the paramount public interest in upholding the rule of law through federal prosecution.”

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Smith argues that while presidents deserve protection from civil lawsuits, there is no blanket immunity from criminal prosecution, particularly for a former president charged with making grave threats to the transfer of power. Even if presidents did enjoy immunity for their official duties, he argues, Trump’s actions would not qualify for such protection because he was acting well outside the bounds of his proper duties.

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“No historical materials support [Trump’s] broad immunity claim, and the post-Presidency pardon that President Nixon accepted reflects the consensus view that a former President is subject to prosecution after leaving office.”

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“Because the only remedies available in the impeachment proceedings were removal and disqualification, the defendant was never previously placed in jeopardy. But even if he were, the indictment charges different offenses than were at issue in his impeachment,” prosecutors wrote.

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Earlier this month, the Supreme Court turned down a request from Smith to bypass the normal appeals process and take up the presidential immunity issue on an urgent basis. The justices did not explain their decision, but it does not preclude the question returning to the high court after the appeals court rules.

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Another potential wrinkle in the case: Outside advocacy group American Oversight has urged the appeals court to essentially punt the appeal, contending that Trump — like most criminal defendants — had no right to an appeal until after a trial and jury conviction.

  Politico

UPDATE 12/31/2023: