Special Counsel Jack Smith delivers remarks on a recently unsealed indictment including four felony counts against former President Donald Trump in Washington, D.C., Aug. 1, 2023. (Drew Angerer/Getty Images)

(WASHINGTON) — The office of special counsel Jack Smith has just filed its brief urging the Supreme Court to reject former President Donald Trump’s appeal claiming he should be immune from prosecution in his 2020 federal election subversion case.

In his brief to the Supreme Court, Special Counsel Smith argues that Trump has put forward a “novel and sweeping” theory of immunity that lacks any historical precedent and refutes the vision of the country that its founders intended.

“The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law,” the brief reads. “To the contrary, a bedrock principle of our constitutional order is that no person is above the law— including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”

Smith’s argument seeks to counter accusations from former President Trump that his prosecution is politically motivated by pointing to “layered safeguards” already in the U.S. criminal justice system that serve to protect against such abuses.

“A criminal prosecution must be brought by the Executive, with strong institutional checks to ensure evenhanded and impartial enforcement of the law; a grand jury must find that an indictment is justified; the government must make its case and meet its burden of proof in a public trial; and the courts enforce due process protections to guard against politically motivated prosecutions,” the brief says.

The special counsel further accuses Trump of putting forward a “radical suggestion” that presidents, in general, should be assured they’re immune from prosecution for any criminal acts taken while in office, arguing that “would free the President from virtually all criminal law—even crimes such as bribery, murder, treason, and sedition.”

“The absence of any prosecutions of former Presidents until this case does not reflect the understanding that Presidents are immune from criminal liability; it instead underscores the unprecedented nature of [Trump’s] alleged conduct,” they write. “And none of the dissimilar historical examples on which petitioner relies suggests otherwise.”

In the special counsel’s brief, Smith also requests that if the court does hold in its final ruling that a former president should be entitled to some immunity from prosecution, it shouldn’t prevent the government from bringing its specific case against Trump to trial.

“First, the specific form of criminal conduct charged here—efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process for electing the President—does not justify any form of immunity. Second, the private conduct that the indictment alleges is sufficient to support the charges. Thus, even if liability could not be premised on official acts, the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision. Petitioner could seek appellate review of those rulings, if necessary, following final judgment,” the brief says.

The Supreme Court is scheduled to hear oral arguments on the issue on April 25. Trump’s team will have the opportunity to address Smith’s arguments with its brief next week.

Trump filed a brief with the court last month making his formal argument for why he should be granted immunity.

“The president cannot function, and the presidency itself cannot retain its vital independence, if the president faces criminal prosecution for official acts once he leaves office,” his attorneys wrote.

The case presents novel legal questions for the judicial system, as Trump is the first current or former president ever to be criminally indicted.

Lower courts, though, have so far rejected his immunity arguments. The U.S. Court of Appeals in Washington warned of a “collapse our system of separated powers” if Trump’s stance on the matter were to be accepted.

Trump faces four felony charges, including conspiracy to defraud the United States and obstruction, in the indictment brought by Smith last year, in which prosecutors detailed what they said was his plot to remain in power after his electoral loss to President Joe Biden. Trump has pleaded not guilty to the charges and has denied any wrongdoing.

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