Richard Nixon is pictured speaking during a White House news briefing in Washington. Jack Smith and Donald Trump are also shown in photos.
The special counsel urged the U.S. Supreme Court justices not to allow presidents to avoid prosecution for official acts, including murder, by claiming absolute immunity.
Jack Smith emphasized that the charges against former President Donald Trump for his actions on Jan. 6 involved substantial private conduct, aided by several individuals and through private means.
The key points from the long-awaited brief on whether a former President enjoys immunity from criminal prosecution for official acts during their time in office.
The Founding Fathers never supported criminal immunity for a former President, and Richard Nixon accepting a pardon after resigning indicates he knew there was no such immunity.
Smith countered Trump's argument about presidential accountability after leaving office by referring to Richard Nixon's resignation and subsequent pardon as proof of criminal liability for Watergate.
Smith wrote that the Framers never endorsed criminal immunity for a former President, and all Presidents, from the Founding to the modern era, knew they faced potential criminal liability after leaving office. He cited Nixon as the closest historical example and noted that the Department of Justice and previous Presidents operated under the understanding that a former President could face criminal prosecution.
Jack Smith's plea to the Supreme Court on Trump's immunity calls on the court to consider Reagan and Nixon and reject Trump's view of the Constitution as 'dystopian'.
Smith also included a link to Ford's statement on pardoning Nixon, in which Ford expressed doubt about Nixon receiving a fair trial. statement on pardoning Nixon, in which the then president expressed that he did not think Nixon could get a fair criminal trial.
Ford said he believed many months or even years would have to pass before Richard Nixon could hope to receive a fair trial in the U.S.
Prosecuting Trump won't discourage future presidents
The special counsel argued that presidential immunity from 'private civil damages actions does not extend to federal criminal prosecutions.' They said there are safeguards in place to prevent politically motivated prosecutions that Trump has complained of.
Smith stated that a criminal prosecution must be carried out by the Executive, with checks to ensure fair enforcement of the law. A grand jury must find an indictment justified, and the government must prove its case in a public trial. The courts enforce due process protections to guard against politically motivated prosecutions. Collectively, these safeguards provide assurance that prosecutions will be screened rigorously and no President need be afraid of prosecution for federal crimes.
Trump's 'radical suggestion' would 'free the President from virtually all criminal law,' including murder charges.
Federal criminal law applies to the President. Petitioner 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. That rule finds no support in this Court’s decisions. Nor is it supported by opinions of the Department of Justice, which have instead construed statutes to apply to the President unless doing so creates a serious risk of infringing the President’s constitutional powers. That more modest interpretive principle has no application to the crimes charged here, which pose no risk of unconstitutionally regulating the President’s conduct.
Avoiding an impeachment conviction in the political world, as happened twice in Trump’s presidency, is not a get out of jail free card in the real world.
The Impeachment Judgment Clause, U.S. Const. Art. I, § 3, Cl. 7, does not establish a rule requiring a President’s impeachment and conviction before a former President may be prosecuted. The text of the clause clarifies that an impeached and convicted President may nevertheless be prosecuted and thus expressly recognizes that former Presidents are subject to federal criminal prosecution. Petitioner acknowledges that prosecution is permitted after impeachment and conviction, which refutes many of the other arguments in his brief. And text, structure, and history contradict petitioner’s assertion that the Impeachment Judgment Clause implicitly makes Senate conviction a condition precedent to prosecution. Impeachment is an inherently political process, not intended to provide accountability under the ordinary course of the law. Criminal prosecution, in contrast, is based on facts and law, and is rigorously adjudicated in court. Adopting petitioner’s position would thwart the ordinary application of criminal law simply because Congress, in administering the political process of impeachment, did not see fit to impeach or convict.
The lack of other prosecutions of former presidents does not mean it can’t be done, but rather that Trump’s alleged conduct is 'unprecedented.'
The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of petitioner's alleged conduct. And none of the dissimilar historical examples on which petitioner relies suggests otherwise.
Anticipating that the justices might find a former president has 'some immunity' from being prosecuted for official acts, the special counsel argued that even if that is so the case can still proceed.
Next, the special counsel stated that the 'private conduct' alleged in the indictment is enough to go to trial.
The special counsel said, “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. Second, at 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. Those allegations of private misconduct are more than sufficient to support the indictment.”
Smith then referenced Founding-era authorities to draw a distinction between impeachment and criminal prosecution, with a mention of Justice Clarence Thomas’ dissent in Trump v. Vance on the subject of absolute immunity.
The Framers’ most relevant writings provide no support for immunity of the type that petitioner claims. “James Wilson, a signer of the Constitution and future Justice of this Court, explained to his fellow Pennsylvanians that ‘far from being above the laws, [the President] is amenable to them in his private character as a citizen, and in his public character by impeachment.'” Vance, 591 U.S. at 816-817 (Thomas, J., dissenting) (quoting 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 480 (J. Elliot ed. 1891) (Debates on the Constitution)). Wilson therefore recognized that prosecution was the means of holding a President accountable in his “private character” for criminal acts, while impeachment was the means of addressing his “public character” as office holder. “James Iredell, another future Justice, observed in the North Carolina ratifying convention that ‘[i]f [the President] commits any crime, he is punishable by the laws of his country.'” Id. at 817 (Thomas, J., dissenting) (quoting 4 Debates on the Constitution 109). Alexander Hamilton likewise confirmed that a President, unlike a King, would be “liable to prosecution and punishment in the ordinary course of law.”
A reference to Justice Brett Kavanaugh’s 1998 Georgetown Law Journal article, 'The President and the Independent Counsel,' was made to counter the argument that former presidents can never be prosecuted.What about President Barack Obama's drone strikes, Teddy Roosevelt, and John Quincy Adams?, he stated that in the history of U.S. politics, it is not common to charge a president formally even when many people accuse them of criminal behavior. Trump mentioned historical events like the 'corrupt bargain' between John Quincy Adams and Henry Clay, Andrew Jackson and the 'Trail of Tears,' Teddy Roosevelt and Japanese American internment camps in World War II, Bill Clinton's military strikes during the Monica Lewinsky scandal, George W. Bush and WMDs, and Obama's drone strike that killed U.S. citizens abroad without due process.
Those historical sources and the DOJ materials that petitioner cites reflect the longstanding Department position that although a sitting President enjoys temporary immunity from criminal prosecution— for all conduct, public and private—he may be prosecuted after leaving office. Amenability to Indictment, 24 Op. O.L.C. at 255; see also Brett M. Kavanaugh, The President and the Independent Counsel, 86 Geo. L.J. 2133, 2161 (1998) (noting that if Congress declines to “impeach and remove” a sitting President, he cannot face criminal prosecution “until his term in office expires”).
Smith argued that these examples did not support Trump's point, as most of them raise serious concerns about the separation of powers that are not present in Trump's situation.
In Trump’s briefThe special counsel argued that based on history, Trump's absolute immunity claims are not strong, and it is important to enforce the criminal law because of public interest.
The petitioner's use of official power was just another way to achieve a personal goal, which is prosecutable based on private conduct. The conspiracy involved private individuals working with the petitioner to achieve his private goal through private means. The petitioner allegedly conspired with four private attorneys and a private political consultant in an effort to undermine the election results as a candidate.
Even if it is true that John Quincy Adams and Henry Clay agreed to exchange political support for an appointment following the election of 1824, see Rami Fakhouri, The Most Dangerous Blot in Our Constitution: Retiring the Flawed Electoral College ‘Contingent Procedure,’ 104 Nw. U. L. Rev. 705, 719-720 (2010), Adams was a presidential candidate, not the President, and petitioner fails to explain how the asserted political deal constituted a crime. See United States v. Blagojevich, 794 F.3d 729, 734 (7th Cir. 2015) (“[A] proposal to trade one public act for another, a form of logrolling, is fundamentally unlike the swap of an official act for a private payment.”), cert. denied, 577 U.S. 1234 (2016). Petitioner likewise identifies no court order or criminal statute that would have applied to President Jackson’s decision not to send federal forces to prevent Georgia officials from interfering with the Cherokee following this Court’s decision in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). See generally Joseph C. Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan. L. Rev. 500 (1969).
Petitioner’s 20th and 21st century examples are similarly flawed. He identifies no criminal statutes that could have validly applied to President Roosevelt’s decision to intern Japanese Americans during World War II, President Clinton’s decision to launch military strikes in the Middle East, or President Obama’s decision to launch a drone strike abroad. Those examples involved quintessential exercises of the President’s Commander-in-Chief power during war or to protect the Nation from foreign threats, see U.S. Const. Art. II, § 2, Cl. 1. Attempts by Congress to regulate the President’s exercise of those authorities through the criminal laws would raise the sort of serious separation-of-powers concerns that are absent here. And petitioner’s assertion that President Clinton engaged in an “illegal quid pro quo”—granting a pardon in exchange for a thing of value—rests on speculation. Finally, petitioner makes no effort to support his contentions that President George W. Bush made knowingly false statements about weapons of mass destruction in Iraq or that any of the conduct he ascribes to President Biden would violate a criminal law.
Conclusion
Special counsel Jack Smith told the Supreme Court justices that there are no obstacles to prosecuting former President Donald Trump for his actions on Jan. 6.
“Petitioner’s use of official power was merely an additional means of achieving a private aim—to perpetuate his term in office—that is prosecutable based on private conduct. The conspiracy centrally embraced private actors agreeing with petitioner to achieve his private end through private means,” the brief said. “In particular, petitioner is alleged to have conspired with four private attorneys and a private political consultant in his effort, as a candidate, to subvert the election results.”