Former President Donald Trump renewed his call to the U.S. Supreme Court on Tuesday to dismiss charges against him, asserting that presidents enjoy near-total immunity from criminal prosecution.
In addition, as a deadline loomed for briefs in the case, 18 Republican-led states filed an amicus brief Tuesday urging the Supreme Court to reverse the lower courts and grant Trump blanket immunity. Oral arguments before the high court on the immunity question are scheduled for April 25, and federal district court proceedings have been halted until the Supreme Court issues a ruling.
Trump’s lawyers, led by D. John Sauer of St. Louis, in a 52-page brief argued that a strong executive with virtually no criminal liability from the judicial system was intended by the framers of the Constitution and part of a “234-year unbroken tradition” of not prosecuting presidents for action taken while in office.
The justices should weigh that tradition and dismiss the federal charges accusing Trump — now the presumptive presidential nominee of the Republican Party — of conspiring to overturn his reelection loss in 2020, they wrote.
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U.S. Department of Justice special counsel Jack Smith oversaw an investigation into Trump that led to the criminal charges that the president spearheaded a multipart conspiracy trying to avoid leaving office.
But Trump’s attorneys have argued that those charges should be dismissed under a doctrine of “absolute presidential immunity,” which they said presidents must have to properly exercise their powers.
“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,” the attorneys wrote in the brief’s opening paragraph.
That view is in line with how framers of the Constitution saw the presidency, they said.
“Even if some level of Presidential malfeasance, not present in this case at all, were to escape punishment, that risk is inherent in the Constitution’s design,” Trump’s attorneys wrote.
“The Founders viewed protecting the independence of the Presidency as well worth the risk that some Presidents might evade punishment in marginal cases. They were unwilling to burn the Presidency itself to the ground to get at every single alleged malefactor.”
Impeachment
The only exception to absolute immunity is a president who is impeached by the House and convicted in the Senate, Trump’s lawyers said.
Trump was twice impeached by the House while in office, but acquitted in two Senate trials that required a two-thirds vote for conviction. A majority of senators — with seven Republicans joining all Democrats — voted to convict him in 2021 on charges similar to those he faces in criminal court related to his efforts to subvert the 2020 election results.
Trump’s lawyers argued, as they have in previous filings, that federal courts should never be able to review the conduct of presidents who haven’t been convicted in an impeachment trial.
They asked the court to reject an argument that another exception to presidential immunity could be made for criminal charges stemming from a president’s desire to stay in power.
“Because virtually all first-term Presidents’ official actions carry some, at least partial, motivation to be re-elected, this exception to immunity would swiftly engulf the rule,” they wrote.
Prosecuting or not prosecuting a president is inherently a political act, Trump’s attorneys said.
“This observation applies to former Presidents as well — and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him,” they wrote.
Trump has amassed enough delegates to win his party’s nomination and face President Joe Biden in a fall rematch of the 2020 election.
A Feb. 6 decision by the D.C. Circuit Court of Appeals upholding a lower court’s ruling against Trump noted that the charges allege criminal action that emanated from an effort to unlawfully retain the presidency.
Trump appealed that decision to the Supreme Court.
Red states line up behind Trump
Attorneys general from Alabama, Florida, Idaho, Indiana, Iowa, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Texas, Utah and West Virginia signed a brief to the court filed Tuesday, accusing the government’s timing of the 2020 election interference case as politically motivated.
“After waiting 30 months to indict President Trump, the Special Counsel has demanded extreme expedition from every court at every stage of the case. His only stated reason, the ‘public interest,’ is so thin it’s almost transparent,” the attorneys general wrote.
In the 54-page amicus brief, the state officials allege that the prosecution’s “failure to explain its extraordinary haste suggests one troubling answer: That the timing of the prosecution is designed to inflict maximum damage on President Biden’s political opponent before the November 2024 election.”
The attorneys general argued that the threat of liability could distort a president’s decision-making and lead to a worse job performance, citing several cases, including 1997’s Clinton v. Jones.
The attorneys general, led by Alabama Attorney General Steve Marshall, further accuse the lower courts of “mistreatment” of concerns over opening the proverbial “floodgates” for future partisan prosecutions. Marshall has taken a lead role in advancing a string of legal arguments surrounding election rules likely to boost Trump.
“The court below also underestimated the risk of ‘a torrent of politically motivated prosecutions’ on the ground that ‘this is the first time since the Founding that a former President has been federally indicted,’” the attorneys general wrote, citing the appeals court.
“Glaringly absent is the fact this case is the second of two federal prosecutions against President Trump, who also faces two state prosecutions. How can the ‘risk’ possibly ‘appear slight’?”
The state officials pointed to state and civil cases against Trump in Georgia and New York as evidence that the 2020 election interference case “is not the only one to raise concerns of partisanship.”
Another view, from Ohio, Alaska and Wyoming
Another brief, signed by only three Republican attorneys general, called on the court to assert a more complex legal standard that would still provide broad immunity on a sliding scale.
The three Republican attorneys general told the U.S. Supreme Court that the justices should take a broad view of presidential immunity when the court hears Trump’s attempt to dismiss criminal charges related to his efforts to overturn the 2020 election.
Ohio Attorney General Dave Yost led a brief to the court that was also signed by Alaska Attorney General Treg R. Taylor and Wyoming Attorney General Bridget Hill. The Republicans argued not for absolute immunity, but a two-part test that would still allow for broad immunity.
Arguing more about legal theory than the specifics of Trump’s case, Yost, Taylor and Hill said the judiciary must balance the need for a president to exercise wide discretion in executing the office’s powers with the need for accountability of a rogue executive.
“Very broad, but not limitless, presidential immunity is dictated by our constitutional structure,” they wrote.
The three attorneys general proposed a two-part test to settle a claim of presidential immunity.
First, the courts should determine how closely the alleged acts are tied to the president’s core constitutional duty, they said. As an example, they said presidents should be given more latitude in conducting foreign affairs than in investigating a political rival because conducting foreign affairs is a central constitutional duty.
Courts should also determine the “urgency of the situation surrounding” alleged crimes by a president, they said. For example, a president seizing property of political opponents should be considered differently than a president seizing property during a war.
The attorneys general did not say how courts should decide Trump’s case, suggesting instead the Supreme Court simply announce that it is adopting the two-part test and leave the trial court responsible for determining how to apply it to the facts of the case.
A Supreme Court-sanctioned test would help the trial court conduct unprecedented proceedings and could also give the public confidence that the trial was nonpolitical, they said.
Other arguments
Several other interested parties submitted briefs Tuesday, the last day for so-called friend-of-the-court briefs in Trump’s case before the high court.
Senate Republicans’ campaign arm, the National Republican Senatorial Committee, led by Montana’s Steve Daines, wrote that the court should adopt the absolute immunity standard, worrying that a decision otherwise would create a cycle of political prosecutions for every future president.
“The D.C. Circuit opinion is akin to a loaded gun lying on the table that future prosecutors can now wield against Presidents (and former Presidents) of all political persuasions,” the NRSC wrote. “The D.C. Circuit seems to believe that partisan actors will be able to resist the temptation to use that weapon against their political enemies; anyone who pays the slightest attention to American politics knows better.”
Mark Meadows, Trump’s White House chief of staff during the 2020 election and his subsequent efforts to overturn the results, also wrote to the court to ask that a decision in the case reinforce the legal principle giving lower federal officials immunity from state prosecution.
Meadows, a former U.S. House member from North Carolina, is among Trump’s co-defendants on state charges in Georgia related to the effort to overturn the 2020 election.
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