Special counsel Jack Smith’s office said democracy is threatened by former President Donald Trump’s claims that presidential immunity shields him from criminal prosecution after leaving the White House.
In a Saturday court filing, Smith’s office carefully dissected Trump’s plea to the U.S. District Court of Appeals for the District of Columbia, which asked for the federal election interference case against him to be dismissed.
Trump has made two main arguments: He is immune from crimes committed while he was serving as president, and also that Smith’s case against him constitutes unconstitutional double jeopardy given that he was impeached for the same conduct in the House and let off by the Senate.
“Those arguments lack support in the separation of powers, constitutional text, history, or precedent. Both arguments also threaten to undermine democracy,” read the 82-page document.
The new filing noted that Trump’s claims “draw no support from our constitutional heritage and, if accepted, would damage bedrock principles of equality before the law.”
Smith charged Trump in August with scheming to undo Joe Biden’s victory in the 2020 presidential election, allegedly going so far as to craft panels of fraudulent electors in certain swing states to overturn the will of voters.
Trump has denied any wrongdoing in the case, one of several brought against him for conduct during his single term in office that he is being forced to confront as he campaigns for a second term.
“The Presidency plays a vital role in our constitutional system,” the filing stated, “but so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process.”
U.S. District Court Judge Tanya Chutkan ruled against Trump earlier this month when he argued the case should be tossed out.
Trump appealed, but Smith then took the unusual step of asking the U.S. Supreme Court to step in and settle the issue quickly. The Supreme Court declined to intervene before the appellate court could weigh in, so the case is now effectively paused until the courts are given time to fully consider Trump’s various claims.
The appeals court is currently set to hear the case on Jan. 9.
Smith and his team turned back to history and precedent to argue that Trump’s immunity claim was bogus.
Pointing out that former presidents were always intended to be treated as any other citizen under the law, Smith’s office cited former Vice President Aaron Burr’s 1807 treason trial, which featured some of the Constitution’s framers and determined that “the President is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.”
Smith’s office recalled Founding Father James Madison’s remarks on the unique potential for corruptibility in the executive branch because it is led by a single person.
The team cited disgraced former President Richard Nixon, whose counsel acknowledged in a 1974 brief that presidents may “be indicted after he leaves office at the end of his term or after being ‘convicted’ by the Senate in an impeachment proceeding.”
It also cited Trump himself, whose counsel argued in response to 2019’s Trump v. Vance that the protections Trump sought at the time for his financial records “would expire when the President leaves office” and would not “place the President ‘above the law.’”