Ordering the National Guard to murder one’s critics, selling nuclear secrets to foreign adversaries, telling the FBI to plant evidence on political enemies, taking bribes for government contracts — these are all things presidents could do without criminal consequence if Donald Trump’s immunity argument is correct, special counsel Jack Smith told a federal appeals court in Washington.
That’s 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,” Smith’s team wrote to the U.S. Court of Appeals for the District of Columbia Circuit on Saturday. A three-judge panel of that court will hear arguments Jan. 9 on the former president’s long-shot immunity claim, whose absurdity and downright danger are among the points highlighted in the special counsel’s 82-page filing.
“The implications of the defendant’s broad immunity theory are sobering,” Smith’s team wrote, adding that Trump’s approach would leave “no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers — thereby hamstringing any impeachment proceeding — to ensure that he remains in office unlawfully.”
It’s no secret that Trump’s argument in his federal election interference prosecution is a weak one. Of course, if the courts agree with him, then the case is over. But in the likely event he loses, then the bigger question will be how long that process takes to play out. Recall that the Supreme Court last month rejected Smith’s attempt to leapfrog the D.C. Circuit, so the appeals court is where the action is now, ahead of the March trial that’s increasingly unlikely to take place as scheduled.
The extent to which that March 4 start date is pushed back will depend partly on how long it takes the panel to rule after the Jan. 9 argument, given the seeming inevitability of further appeal by the side that loses. As ever, the outcome — and importantly, the timing of that outcome — may lie with the justices.
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