Prosecutors Ask Supreme Court to Reject Trump’s Immunity Claim in Election Case

Jack Smith, the special counsel prosecuting former President Donald J. Trump on charges of plotting to overturn the 2020 election, urged the Supreme Court on Monday to reject Mr. Trump’s claim that he is immune from prosecution.

“The president’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them,” Mr. Smith wrote.

The filing was Mr. Smith’s main submission in the case, which will be argued on April 25.

He wrote that the novelty of the case underscored its gravity.

“The absence of any prosecutions of former presidents until this case does not reflect the understanding that presidents are immune from criminal liability,” Mr. Smith wrote. “It instead underscores the unprecedented nature of petitioner’s alleged conduct.”

He urged the justices not to lose sight of the basic legal terrain.

“A bedrock principle of our constitutional order,” he wrote, “is that no person is above the law — including the president.” He added, “The Constitution does not give a president the power to conspire to defraud the United States in the certification of presidential-election results, obstruct proceedings for doing so or deprive voters of the effect of their votes.”

Mr. Smith urged the court to move quickly, though he did not directly address the pending election.

When the Supreme Court said in February that it would hear the case, it set what it called an expedited schedule. But it was not particularly fast, with oral arguments scheduled about seven weeks later. That delay was a significant partial victory for Mr. Trump, whose trial had been expected to start March 4.

Even if the court then acts with considerable speed and definitively rules against Mr. Trump within a month, the trial would most likely not start until at least the fall, well into the heart of the presidential campaign. If the court does not rule until late June or returns the case to the lower courts for further consideration of the scope of any immunity, the trial might not take place until after the election.

If Mr. Trump prevails in the election, he could order the Justice Department to drop the charges.

In agreeing to hear the case, the Supreme Court said it would decide this question: “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.”

That sentence has been closely scrutinized. On the one hand, it seemed to exclude from consideration Mr. Trump’s argument that his acquittal at his second impeachment trial, on charges that he incited insurrection, blocked any prosecution on similar charges. (Fifty-seven senators voted against him, 10 short of the two-thirds majority needed to convict.)

On the other hand, it appeared to leave open the possibility that the court might draw distinctions — or ask lower courts to — between official acts and private ones.

So far, lower courts have rejected Mr. Trump’s claim that he is completely immune from prosecution for acts he took as president.

“Whatever immunities a sitting president may enjoy,” Judge Tanya S. Chutkan of the Federal District Court in Washington wrote, “the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.”

A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit agreed. “For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote in an unsigned decision. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”

In the brief filed Monday, Mr. Smith relied on a 1974 Supreme Court decision, United States v. Nixon, in which the court ruled that President Richard M. Nixon, then still in office, had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

“Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren E. Burger wrote for a unanimous court.

In their own brief filed last month, Mr. Trump’s lawyers urged the justices to consider a different decision involving Nixon. That case, Nixon v. Fitzgerald, was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, in 1982, Nixon had been out of office for several years.

The justices ruled for Nixon by a 5-to-4 vote. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

That precedent, Mr. Smith wrote on Monday, did not apply in criminal cases.

“This case involves the far weightier interest in vindicating federal criminal law in a prosecution brought by the executive branch itself,” he wrote. “That was not true in Fitzgerald.”

The new case, Trump v. United States, No. 23-939, is just one of three concerning Mr. Trump and the charges against him on the Supreme Court’s docket this term. Last month, the justices rejected a challenge to his eligibility to hold office. And next week, the court will hear arguments over the scope of two of the charges against him in the federal election interference case brought by Mr. Smith.

In his brief filed Monday, Mr. Smith wrote that the stakes are enormous.

“The severity, range and democracy-damaging nature of the alleged crimes are unique in American history,” he wrote. “Other than former President Nixon, whose pardon precluded criminal prosecution, petitioner can point to no former president alleged to have engaged in remotely similar conduct.”

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