Special counsel Jack Smith pushes back on Trump’s immunity claim

By Zachary Cohen and Katelyn Polantz, CNN

(CNN) — Special counsel Jack Smith pushed back on former President Donald Trump’s claim that he should be cloaked with absolute immunity from criminal prosecution, arguing in a new filing Saturday that the sweeping assertion “threatens to license Presidents to commit crimes to remain in office.”

Smith’s response to Trump’s immunity claim in the federal election subversion case comes ahead of oral arguments before a US appeals court in Washington, DC, which are scheduled for January 9.

“The defendant asserts (Br.1) that this prosecution ‘threatens … to shatter the very bedrock of our Republic.’ To the contrary: it is the defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election, that threatens the democratic and constitutional foundation of our Republic,” Smith wrote in the new filing.

“This Court should affirm and issue the mandate expeditiously to further the public’s — and the defendant’s — compelling interest in a prompt resolution of this case,” he added.

Trump faces four counts in the case, including conspiring to defraud the United States and to obstruct an official proceeding. The former president has pleaded not guilty.

Pre-trial proceedings were temporarily put on hold in the federal election subversion case pending Trump’s appeal of the district court judge’s ruling that, as a former president, he is not entitled to immunity for potential crimes he committed while in office.

The trial was initially scheduled to begin March 4; the former president’s lawyers have advocated repeatedly for the trial to take place after the 2024 presidential election in November, with Trump’s fight over the immunity claim underscoring those efforts.

If the circuit moves quickly on these arguments — which the special counsel and the trial judge have said are not credible — it could potentially keep the Trump’s trial date as scheduled.

In his filing Saturday, Smith warned that allowing a former president this kind of broad immunity poses extreme danger.

“The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern,” the filing reads.

“That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy,” it adds.

In Saturday’s filing, Smith also rebutted Trump’s argument that criminal prosecution would amount to double jeopardy because he was acquitted by the Senate during impeachment proceedings.

“Because a former President does not have the sort of sweeping immunity the defendant advocates, the denial of his motion to dismiss should be affirmed, and this case should proceed to trial,” Smith wrote.

“That straightforward conclusion would not, however, foreclose the possibility that a future prosecution could raise difficult questions implicating cognizable separation-of-powers concerns,” he added.

Trump has previously asked the DC appeals court to overturn a lower-court ruling rejecting his claims of immunity in the election subversion case. The Supreme Court refused to take up the case on an expedited basis, as Smith requested.

Trump’s earlier filing reiterates what the former president’s lawyers have repeatedly asserted — that Trump was working in his official capacity as president to “ensure election integrity” when he allegedly undermined the 2020 election results and therefore has immunity, and that his indictment is unconstitutional because presidents cannot be criminally prosecuted for “official acts” unless they are impeached and convicted by the Senate.

District Judge Tanya Chutkan rejected immunity claims from Trump and his attorneys, writing in an opinion that his “four-year service as Commander in Chief did not bestow on him the divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Smith asks appeals court to implement ruling quickly

The special counsel’s arguments to the appeals court also try to tackle head-on how Trump has used potential delays in the road to trial to his advantage.

The prosecutors asked the appeals court to implement its ruling five days following the decision. It’s an atypical request that — if granted and if the Department of Justice wins at this level — would force Trump’s team to pursue further appeals with the DC Circuit or the Supreme Court within days.

“For the reasons given in the Government’s motion to expedite appellate review, including the imperative public importance of a prompt resolution of this case, the Government respectfully requests the Court to issue the mandate five days after the entry of judgment,” the DOJ prosecutors wrote. “Such an approach would appropriately require any party seeking further review to do so promptly.”

The questions in this appeal need to be resolved by higher courts before Trump’s trial can take place, because of the rights he has as a criminal defendant — and the appeals process often takes months. But this appeal is already moving at relatively warp speed.

In Saturday’s filing, prosecutors point out they already convinced the appeals court to expedite the case.

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