Trump’s First Criminal Trial by Jury
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From the about “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.” Or for our non-lawyers, Smith has to convince the Supreme Court that he can continue his criminal prosecution against Donald Trump for his election interference stuff … at all!
Smith filed his brief to the court this week. He dedicates most of his argument to why a former president lacks immunity from federal criminal prosecution for all official acts during his presidency. No real surprise there, except that the Department of Justice advocates on behalf of the executive branch—aka the president. That usually entails, as you might imagine, maximizing the power of the presidency. In war, in appointments, and in, well, not going to prison. (See the 1973 Nixon-era DOJ memo conveniently deciding that presidents can’t be indicted while in office that was echoed by the Clinton administration in October 2000.)
But toward the end of Smith’s brief is where things get interesting.
“Even assuming that a former President is entitled to some immunity for official acts,” Smith writes, “that immunity should not be held to bar this prosecution.” Why? Smith argues that a president’s efforts 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.” And—or maybe “or”—he argues that the conduct that Trump was indicted for shouldn’t be considered an official act because “the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud.”
Sarah’s View
If the Supreme Court was going to agree with the bulk of Smith’s brief—that a president is not immune from criminal prosecution for any and all official acts while in office—then they didn’t need to take this case. That is what the D.C. Circuit held in February, and this whole thing could have moved on without input from the nine justices.
So it is surprising that Smith dedicated so little of his time (and remember, each side’s brief has to meet a strict page limit) to the argument that the justices are most likely to focus on: Which official acts are immune, and does Trump’s charged conduct look more like immune conduct or indictable conduct?
Fewer than five pages are dedicated to the arguments in case he doesn’t win a complete victory and less than one page addresses whether he should still be able to use unindictable acts as evidence even if he can’t use those acts to support the elements of the underlying charges themselves.
The Supreme Court has long held that presidents are immune from civil liability for any official acts while in office. It would be surprising if the exact opposite is true when it comes to criminal liability. Instead, what is more likely is that the court holds exactly what Smith gives short shrift to: that the public interest in prosecuting criminal conduct overcomes the executive branches immunity interests, but that some or even most official acts by a president are immune from prosecution. And the question will be whether all or only some of Trump’s indicted acts fall into that bucket.
