Jack Smith: New Developments in Trump’s Immunity Case
Special Counsel Jack Smith just urged the U.S. Supreme Court to reject President Donald Trump’s claim to presidential immunity. Smith has charged Trump with conspiracy to overturn the results of the 2020 election against President Joe Biden. Will the Justices heed Smith’s request?
In prosecutors’ final brief before justices hear arguments in Trump’s case on April 25, Smith’s team argued lower courts were right to deny Trump’s immunity claims.
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” they wrote.
Trump, the presumptive GOP presidential nominee, faces criminal charges for allegedly conspiring to prevent Congress from certifying the results of the 2020 election after he lost to Democrat Joe Biden. He denied any wrongdoing.
In 16 days, the Supreme Court will hear the arguments for whether Trump should be liable for actions taken while he was President. According to Smith, all Presidents should be denied immunity for any actions while in office: “A former President is subject to federal criminal prosecution for personal and official acts that violate valid criminal laws.” Smith’s radical claim ignores the potential consequences for former Presidents.
What if a President declares war that results in civilians getting killed? What about suspending habeas corpus like President Lincoln did during the Civil War? What if a President declares martial law in New York City like President Bush did in 2001 after the World Trade Center attacks?
Presidents quickly make such decisions that might later face legal scrutiny. To allow official acts of the President to then be later scrutinized as criminally suspect after they leave office could cause constitutional chaos. We often give the President wide legal latitude in decision-making. For example, the President can send troops to war for 90 days without Congress’ approval.
But the far Left isn’t concerned about the potential fallout of removing presidential immunity and believes that the mere questioning of the validity of the 2020 election is enough to prosecute President Trump. On the contrary, I would argue that a President seeking to ensure the validity of a presidential election falls under their constitutional duties as President.
But the radical Left wants to be able to prosecute a former President for any policies they don’t approve of. However, the far Left should be careful because the same argument could be used against the Presidents they champion.
Many in our Sekulow audience asked where Smith received the authority to make such a radical claim about presidential immunity. Keep in mind that Smith is a Special Prosecutor. He doesn’t get to make such radical decisions – he only gets to ask the courts to decide.
Smith has been part of the Department of Justice as well as the International Criminal Court before. He’s a lifer when it comes to political cases. But he’s not the judge or the jury. He only gets to argue that a President should have all immunity removed for official acts while in office. We filed an amicus brief defending presidential immunity. At the end of the day, the U.S. Supreme Court will make the ultimate decision.
People like Jack Smith or Robert Mueller (the Special Prosecutor in the Russia hoax probe) are former DOJ employees who might now be in private practice. The federal government recruits them to take on these special high-profile cases.
I believe such appointments are a waste of taxpayer money. The DOJ already employs plenty of attorneys who should be capable of taking on these cases. Further, Special Prosecutor appointments should be limited and under stricter scrutiny beyond the U.S. Attorney General’s purview if Special Prosecutors are going to have special powers.
When it comes to Smith’s extreme position about presidential immunity, I hope that the Supreme Court makes the right decision in protecting Presidents for official decisions made while in office. If immunity is revoked, the decision will greatly weaken the office of the President. No future Presidents will want to make any tough decisions, which will only put the country at risk.
Today’s Sekulow broadcast included a full analysis of Smith’s radical argument to the U.S. Supreme Court to reject Trump’s immunity claims. ACLJ Senior Counsel CeCe Heil also gave an update on an ACLJ case defending a church under attack.
Watch the full broadcast below: