Trump tells Supreme Court a denial of immunity would ‘incapacitate every future president,’ in initial brief

Former President Trump told the Supreme Court in his initial brief that he should be immune from criminal charges, arguing that a denial would ‘incapacitate every future president with de facto blackmail and extortion while in office,’ and would create ‘post-office trauma at the hands of political opponents.’ 

Trump, the presumptive GOP presidential nominee, and his legal team filed the 67-page brief to the high court on Tuesday. 

The Supreme Court will hear initial arguments on the issue of presidential immunity on April 25, after Trump argued that he should be immune from prosecution on charges stemming from Special Counsel Jack Smith’s investigation into alleged election interference in 2020 and Jan. 6. 

Smith’s trial is on hold pending the high court’s ruling, which is expected to be handed down in mid-June. 

‘A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,’ the brief states. ‘The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.’ 

The brief lays out the case brought against Trump. 

‘The indictment charges President Trump with five types of conduct, all constituting official acts of the President,’ the brief states. ‘First, it alleges that President Trump, using official channels of communication, made a series of tweets and other public statements on matters of paramount federal concern, contending that the 2020 federal election was tainted by fraud and irregularities that should be addressed by government officials.’ 

‘Second, the indictment alleges that President Trump communicated with the Acting Attorney General and officials at the U.S. Department of Justice (DOJ) regarding investigating suspected election crimes and irregularities, and whether to appoint a new Acting Attorney General,’ it continues. ‘Third, the indictment alleges that President Trump communicated with state officials about the administration of the federal election and urged them to exercise their official responsibilities in accordance with the conclusion that the 2020 presidential election was tainted by fraud and irregularities.’

‘Fourth, the indictment alleges that President Trump communicated with the Vice President, the Vice President’s official staff, and members of Congress to urge them to exercise their official duties in the election certification process in accordance with the position, based on voluminous information available to President Trump in his official capacity, that the election was tainted by extensive fraud and irregularities,’ it states. ‘Fifth, the indictment alleges that other individuals organized slates of alternate electors from seven States to help ensure that the Vice President would be authorized to exercise his official duties in the manner urged by President Trump.’ 

The brief states that according to the indictment, ‘these alternate slates of electors were designed to validate the Vice President’s authority to conduct his official duties as President Trump urged.’ 

‘President Trump moved to dismiss the indictment based on Presidential immunity,’ the brief states. ‘The district court wrongfully held that a former President enjoys no immunity from criminal prosecution for his official acts. The D.C. Circuit affirmed, likewise incorrectly holding that a former President has no immunity from criminal prosecution for official acts.’ 

The Supreme Court has agreed to hear the appeal. 

Trump’s attorneys argue that ‘A former President enjoys absolute immunity from criminal prosecution for his official acts.’ 

‘Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers,’ the brief argues. ‘The Impeachment Judgment Clause reflects the Founders’ understanding that only a President ‘convicted’ by the Senate after impeachment could be criminally prosecuted. The Constitution authorizes the criminal prosecution of a former President, but it builds in a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such a dramatic action.’ 

‘The Founders thus carefully balanced the public interest in ensuring accountability for Presidential wrongdoing against the mortal danger to our system of government presented by political targeting of the Chief Executive,’ the brief states. ‘The long history of not prosecuting Presidents for official acts, despite ample motive and opportunity to do so over the years, demonstrates that the newly discovered alleged power to do so does not exist.’ 

Trump and his attorney argue that the ‘lack of historical precedent’ provides ‘a telling indication of a severe constitutional problem with the asserted power.’

Trump attorneys also argued that the impeachment judgment clause of the Constitution ‘confirms the original meaning of the Executive Vesting Clause — i.e., that current and former Presidents are immune from criminal prosecution for official acts.’ 

Trump attorneys argue that ‘the Impeachment Judgment Clause provides that, after impeachment and Senate trial, ‘the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.’’ 

‘By specifying that only the ‘Party convicted’ may be subject to criminal prosecution, the Clause dictates the President cannot be prosecuted unless he is first impeached and convicted by the Senate,’ the brief states. 

Trump lawyers argued that ‘the Clause’s plain language presupposes that an unimpeached and un-convicted President is immune from prosecution.’ 

Smith charged the former president with conspiracy to defraud the United States; conspiracy to obstruct an official proceeding; obstruction of and attempt to obstruct an official proceeding; and conspiracy against rights. Those charges stemmed from Smith’s investigation into whether Trump was involved in the Jan. 6 Capitol riot and any alleged interference in the 2020 election result.

Trump pleaded not guilty to all charges.