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WASHINGTON — Special counsel Jack Smith on Monday urged the Supreme Court to reject former President Donald Trump‘s position that he should be granted absolute immunity in the federal election interference case, arguing that criminal law applies to a president.
The 66-page filing laid out a series of arguments taking aim at Trump’s claim that a president is immune from criminal prosecution. Smith argued that there are no presidential powers that would entitle Trump to immunity in this case, and that “history likewise refutes” Trump’s arguments.
“The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts,” said Smith in the brief, referencing former President Richard Nixon’s Watergate scandal.
He also said that Trump “suggests that unless a criminal statute expressly names the President, the statute does not apply.”
“That radical suggestion, which would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition — is unfounded,” the filing said.
Smith was appointed by Attorney General Merrick Garland in 2022 to investigate Trump’s alleged role in working to overturn the 2020 presidential election results, as well as allegations of Trump mishandling classified documents.
His filing comes a few weeks before the Supreme Court is set to hear oral arguments about Trump’s immunity argument on April 25.
Trump’s team had made the case for “absolute immunity,” arguing that ruling that the president is subject to criminal prosecution would “incapacitate every future president.” U.S. District Judge Tanya Chutkan, who is overseeing the Trump case, rejected his argument in December, saying that a president does not “a lifelong ‘get-out-of-jail-free’ pass.” A federal appeals court also rejected Trump’s argument in February, finding that “former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant” and that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
In Monday’s briefing, Smith said, “No presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote.”
“The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” Smith added.
The Supreme Court’s earlier decision to hear Trump’s case was a win for the former president, given the further delays it created in his Washington, D.C., case.
Later in his filing, Smith accounted for the possibility that the Supreme Court may decide that presidents have a certain level of immunity.
“Even assuming that a former President is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution,” he wrote. “First, a President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized, even if other conduct should be.”
Trump’s team has engaged in an effort to delay the trial as long as possible, and it has paid off. Trump was originally supposed to go to trial in the federal election interference case at the beginning of last month, a schedule which would have meant a jury could have been reaching a verdict in the coming weeks.
He is now scheduled to go on trial in a separate case, in New York, next week on allegations of falsified business statements related to hush money payments.
Trump has pleaded not guilty to all criminal charges against him.
Ken Dilanian contributed.
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