The demand for immunity by Trump aims to make him like a king and allow him to change a government of laws into a domain for himself, says the ACLU

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Attorneys representing various branches of the American Civil Liberties Union have weighed in on former President Donald Trump’s last-ditch plea for presidential immunity over his Jan. 6 charges, saying efforts to convince the U.S. Supreme Court to dismiss Trump’s Washington, D.C.-based criminal case should be soundly rejected.

And, the brief argues, democracy itself is at stake.

“In this case, the former President seeks the power to engage in criminal activity and forever evade the accountability that all others must face,” the civil liberties lawyers argue in their 27-page friend of the court filing. “At root, it concerns nothing less than whether the United States is a government of laws in which all citizens, including the President, are subject to the nation’s criminal laws, or one in which the President stands immune from criminal prosecution even for blatantly criminal conduct, and even after leaving office.”

Attorneys Cecillia D. Wang, David D. Cole, and Brett Max Kaufman with the national ACLU, along with Scott Michelman and Arthur B. Spitzer with the ACLU’s branch in the federal district, signed the amicus brief filed with the nation’s highest court on Monday.

In February, Trump asked the nine justices to indefinitely stay the federal case against him filed by special counsel Jack Smith for his defense attorneys to prepare and then file a thorough appeal with the Supreme Court that would eventually lead to oral arguments and a precedent-setting ruling on presidential immunity.

The special counsel, in turn, asked the justices to reject that stay request or, in the alternative, to consider the stay request Trump’s petition for writ of certiorari in order to speed the schedule up a bit.

The court split the difference: putting in place the stay request for Trump and pausing criminal proceedings while giving Smith his alternative request. In subsequent filings, Trump argued he was essentially entitled to absolute immunity from criminal prosecution because Barack Obama “killed U.S. citizens abroad by drone strike without due process” and was not subject to any form of legal consequence. Smith, meanwhile, recently use a different analogy: casting the 45th president as the second coming of Richard Nixon.

The ACLU says the text, history and structure of the U.S. Constitution do not support absolute immunity for ex-presidents.

“The President’s assertion of absolute immunity from criminal prosecution for his official acts — no matter how heinous they are — is not supported by the separation of powers,” the brief argues. “On the contrary, the separation of powers, and the rule of law on which it depends, would be undermined if Presidents were above criminal accountability.”

Trump's lawyers have claimed that former presidents have complete immunity, making them beyond legal reproach. They have also argued that sitting presidents can never be examined by the courts.

The ACLU argues that such a legal theory would essentially make the president similar to a king. The ACLU argues that this would make the president similar to a king.As a chapter heading explains, the U.S. president is a citizen, not a King.

The ACLU argues that one historical case is particularly illuminating.

The ACLU explains that Chief Justice Marshall upheld a subpoena to President Jefferson more than 200 years ago, demonstrating that the President does not stand exempt from the constitution's provisions.

The ACLU states that it has long been understood that presidents could be held criminally liable for their official acts after leaving office. They cite a Supreme Court ruling where Trump was found not immune from a subpoena in connection with a state criminal process.

The ACLU argues that examples exist of then-current presidents accepting the view that they could be prosecuted after leaving office. This has long been the view of various White House attorneys and the U.S. Department of Justice.

The ACLU argues that Trump is asking the Court to depart from the consensus view by claiming former Presidents cannot be held criminally liable for their official acts, despite ample motive and opportunity to do so. They state that Trump cites no instance to support this view.

In his own brief, Trump cited a Supreme Court ruling describing the president as acting with his own discretion. The ACLU says this quote is taken out of context.

The attorneys argue that not all official acts are discretionary and that the President has no discretion to violate criminal law, as it goes against the rule of law.

A large part of Trump’s argument is based on a Supreme Court ruling granting absolute immunity in the civil context, meaning he generally cannot be sued for official acts during his presidency.

The ACLU believes that argument goes too far.

The document argues that exposure to criminal liability requires a different balance because the risk of harassing lawsuits is much lower, and society has a greater interest in enforcing criminal prohibitions.

The ACLU continues to argue that the allegations against Trump are very concerning and need to be addressed in a criminal court because they go to the heart of democracy's peaceful transition of power. If Trump’s argument is accepted, it could allow future Presidents to misuse their position to resist the transfer of power.

Here, the ACLU says, the harm would be enormous.

The document concludes that even if the former President had personally conspired with a group of his supporters to assassinate the Vice President and hold Congress hostage to stay in power, he would be immune from criminal prosecution. The boldness of the claim reveals its main flaw — it would effectively allow a rogue President to try to turn a government of laws into a domain for himself and avoid any criminal accountability after doing so. This cannot be reconciled with the most basic principles of a constitutional democracy and must be rejected.