By Alan Feuer
Federal prosecutors asked an appeals court over the weekend to reject former President Donald Trump’s claims that he is immune from criminal charges of plotting to overturn the 2020 election and said the indictment should remain in place even though it arose from actions he took while in the White House.
The government’s filing to the U.S. Court of Appeals for the District of Columbia Circuit was part of an ongoing struggle between Trump’s lawyers and prosecutors in the office of special counsel Jack Smith over whether former presidents can be criminally liable for things they did in office.
The fight over immunity is arguably the most important aspect of the election interference case, involving both new questions of law and consequential issues of timing. The case is set to go to trial in U.S. District Court in Washington in early March but has been put on hold until Trump’s attempts to dismiss the charges on grounds of immunity are resolved.
The appeal is legally significant because it centers on a question that has never before been asked or fully answered. That is because Trump is both the first former president to have been charged with crimes and because he has chosen to defend himself in this case with a novel claim: that the office he held at the time should shield him entirely from prosecution.
But the fight has revolved around more than the technical issue of whether the indictment should survive and Trump should eventually stand trial. The defense and prosecution have been waging a separate, but no less crucial, battle about when the trial will happen — specifically about whether it will take place before or after the 2024 election. If the trial is held after the election and Trump wins, he would have the power to order the charges he is facing to be dropped.
In their 82-page filing to the appeals court on Saturday, prosecutors focused on legal arguments and said that nothing in the Constitution or the country’s other founding documents supported the idea that a former president should not be subject to federal criminal law.
“The presidency plays a vital role in our constitutional system, but so does the principle of accountability for criminal acts — particularly those that strike at the heart of the democratic process,” wrote James Pearce, one of Smith’s deputies. “Rather than vindicating our constitutional framework, the defendant’s sweeping immunity claim threatens to license presidents to commit crimes to remain in office. The founders did not intend and would never have countenanced such a result.”
When Trump’s lawyers filed their appellate brief the previous week, they argued, among other things, that if absolute immunity was denied in this case, future presidents would have to fear facing criminal charges for an array of acts they undertook in office — including firing Cabinet members or using lethal force overseas.
But Pearce scoffed at that argument, telling the appeals court that if presidents faced the possibility of being prosecuted for crimes committed in office, it could have “a salutary, not a chilling, effect” on their behavior. He also noted, as Trump’s own cases have shown, that it is not easy to indict a former president given that “rigorous standards” must be met before defendants are charged, let alone convicted.
Moreover, Pearce said, Trump’s argument had “sobering” implications. Under such a broad theory of immunity, he wrote, a president who took bribes or who instructed the FBI to plant incriminating evidence on a political enemy would also be immune from criminal prosecution.
There should be no immunity, Pearce told the appeals court, for the accusations Trump is facing — that he sought to stay in power despite the will of the voters.
“A scheme to thwart the peaceful transfer of power contradicts the most basic constitutional check on executive abuses,” he wrote. “A president comes to power by winning an election, not by subverting the results of the vote.”
Judge Tanya Chutkan, who has been handling the case since it was filed this summer, rejected Trump’s immunity claims in early December. In her decision , she acknowledged that the Justice Department has long pursued a policy of not indicting presidents while they are in office but said that as Trump was no longer in the White House, he should face prosecution.
“Whatever immunities a sitting president may enjoy, 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,” she wrote. “Former presidents enjoy no special conditions on their federal criminal liability.”
Trump appealed the decision to the first court above Chutkan’s — the court now hearing the case.
But fearing that a protracted challenge could delay the case from going to trial as scheduled, Smith made an unusual request to the Supreme Court: He asked the justices to step in front of the appeals court and consider the case first, to speed up the process and preserve the current trial date.
The Supreme Court turned down Smith’s request on Dec. 22, sending the case back to the appeals court.
A three-judge panel of that court is now considering the question of immunity on a highly accelerated schedule. All written briefs in the case are set to be filed by today. Oral arguments have been scheduled for Jan. 9.