Donald Trump’s presidential immunity claim is unprecedented and dangerous. As expected, special counsel Jack Smith does well to point that out in his new Supreme Court brief.
Yet, mindful that the court may recognize some form of immunity for official acts, Smith wants to make sure that any such recognition wouldn’t interfere with trying Trump in the federal election interference case, which has already been substantially delayed.
“Even assuming that a former President is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution,” Smith’s office wrote to the justices Monday. The special counsel went on:
First, the specific form of criminal conduct charged here—efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process for electing the President—does not justify any form of immunity. Second, the private conduct that the indictment alleges is sufficient to support the charges. Thus, even if liability could not be premised on official acts, the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision.
More specifically, Smith urged the court that, even if it were to find that some form of immunity exists for official acts, “that immunity should not preclude all evidentiary uses of official acts in a trial based on petitioner’s [Trump’s] purely private conduct.” The reason that that line is important is that the court is technically considering a broader question: “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 answering that broader question, it’s unclear to what extent the court will address how exactly that applies to Trump’s case and potential trial. So in addition to obviously disagreeing with the former president’s “novel and sweeping” immunity theory, as Smith’s brief calls it, the government wants to lay the groundwork for as smooth a landing as possible. That is, as soon as the high court rules, Smith wants to be able to run back into the trial court and get this moving, in a way that keeps his initial charges and theory of the case intact. (The filing comes as Trump is set to stand trial next week in his first criminal case, in New York. Separately, the Supreme Court will hear arguments next week in an unrelated Jan. 6 case that could affect some of Trump’s charges in the federal election interference case.)
So it remains an open question whether the Supreme Court, even if it broadly rules against Trump, will effectively immunize him in the process, by virtue of the court taking up the appeal in the first place and then taking months to decide it. That time component raises the question of when the court will rule after the April 25 hearing. The justices set it for their very last argument day of the term. If Trump, the presumptive GOP presidential nominee, wins the November election, then he’ll be empowered to crush the case. So it remains an open question whether the Supreme Court, even if it broadly rules against Trump, will effectively immunize him in the process, by virtue of the court taking up the appeal in the first place and then taking months to decide it. With that in mind, Smith urges a quick ruling, writing: “Consistent with the Court’s expedited treatment of this case, the government respectfully requests that the Court issue the opinion and a certified copy of the judgment forthwith.” His brief shows that it will be important not only when the court rules, and not only if it rules against Trump, but specifically how it does so. Subscribe to the Deadline: Legal Newsletter for weekly updates on the top legal stories, including news from the Supreme Court, the Donald Trump cases and more.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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