Former President Donald Trump’s lawyers responded to special counsel Jack Smith ahead of oral arguments, writing that a “234-year unbroken tradition” supports Trump’s claim to presidential immunity from prosecution.
Quoting extensively from early Americans like Alexander Hamilton, James Madison, Chief Justice John Marshall and Justice Joseph Story, his attorneys argue in a 41-page brief that impeachment is the proper check on “official acts” taken by presidents, not criminal prosecution.
The D.C. Circuit Court of Appeals is scheduled to hear oral arguments on Trump’s bid to dismiss his election interference case based on presidential immunity on Jan. 9.
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“[P]unishment of a President always involves political considerations going beyond guilt or innocence,” Trump’s lawyers wrote. “The Framers recognized that, and they delegated to Congress the power to weigh those political considerations in the first instance.”
“To allow prosecution after acquittal usurps that role and undermines the mechanism the Framers used to temper political passions: impeachment in the House and trial in the Senate,” they continued.
The Senate voted in February 2021 to acquit Trump in his second impeachment trial, where he faced the charge of inciting an insurrection.
The attorneys wrote that the government relies on facts “outside the indictment” to suggest Trump is responsible for the events of Jan. 6 and “selectively omits key facts,” like Trump telling the crowd in his speech to “peacefully and patriotically make your voices heard” and “cheer on our brave senators and congressmen and women.”
Trump was “carrying out his duties as Chief Executive to investigate the overwhelming reports of widespread election fraud,” they argue.
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The D.C. Circuit ordered parties Tuesday to be prepared for questions about issues raised in friend-of-the-court briefs, which include possible constitutional issues with Smith’s appointment and challenges to the timing of Trump’s appeal.
District Court Judge Tanya Chutkan denied Trump’s bid to dismiss his case based on presidential immunity on Dec. 1. The Supreme Court declined on Dec. 22 Smith’s request for it to consider the question before allowing the D.C. Circuit to weigh in.
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