Jack Smith cites SCOTUS Justices Kavanaugh and Thomas in rebutting Trump's immunity claims

 April 10, 2024

Special Counsel Jack Smith has finally submitted his main brief to the Supreme Court in opposition to former President Donald Trump's claim of presidential immunity from criminal prosecution in the 2020 election-related federal indictment brought by Smith.

In making his arguments for the Supreme Court to reject Trump's claim of absolute immunity, Smith cited a law journal article from Justice Brett Kavanaugh that asserted former presidents were liable to face criminal prosecution after leaving office, according to Law & Crime.

The special counsel also cited a dissent from Justice Clarence Thomas in a previous case involving Trump in which Thomas quoted Founding-era figures making assurances that presidents could face prosecution for criminal acts.

Smith argues against Trump's immunity claim

It was in February that the Supreme Court agreed to take up former President Trump's petition to consider the question of "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."

On Monday, Special Counsel Smith filed a 66-page brief that aimed to rebut or undermine each of Trump's arguments that he was protected against criminal prosecution, even after leaving office, for any alleged acts committed during his presidency that could be linked to his "official" duties as president.

Smith argued that the nature of Trump's alleged criminal conspiracies was inherently "private" and not "official" in that they involved "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 cites Justice Kavanaugh's law journal article on presidential prosecutions

One of former President Trump's arguments in support of presidential immunity is that the U.S. Constitution's Impeachment Clause renders a former president immune from criminal prosecution unless they were first impeached and convicted and removed from office -- an argument that Special Counsel Smith rejected as a sort of get-out-of-jail-free care that the nation's Founders and Framers never envisioned and would disapprove.

In making the assertion that Trump was liable to criminal prosecution, Smith cited a 1998 article in the Georgetown Law Journal written by Justice Kavanaugh which noted that "if Congress declines to 'impeach and remove' a sitting President, he cannot face criminal prosecution 'until his term in office expires.'"

That article was focused on improving the then-independent counsel "scheme" to investigate and potentially prosecute high-ranking Executive Branch officials, including the president, and suggested that "Congress should establish that the President can be indicted only after he leaves office voluntarily or is impeached by the House of Representatives and convicted and removed by the Senate."

The future Supreme Court justice further suggested in the article that Congress should clarify that "the President may not maintain any executive privilege, other than a national security privilege, in response to a grand jury or criminal trial subpoena sought by the United States."

Smith cites Justice Thomas' quotes of Founding figures

Special Counsel Smith also turned to what Justice Thomas wrote on the subject of presidential immunity from prosecution in his dissent in Trump v. Vance, in which Thomas quoted multiple Framers of the Constitution as saying that presidents would be liable to face prosecution for criminal acts.

"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,'" as well as that "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.'"

It was also observed that "Alexander Hamilton likewise confirmed that a President, unlike a King, would be 'liable to prosecution and punishment in the ordinary course of law.'"

According to The Washington Post, the Supreme Court will hear oral arguments on the matter on April 25, after first considering the many briefs filed in the case, including by Trump and Smith, and a ruling on Trump's immunity claim is expected by June or July.

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