Donald Trump’s presidential immunity claim is unprecedented and dangerous. As expected, special counsel Jack Smith does well to point that out in his new Supreme Court brief.
Yet, mindful that the court may recognize some form of immunity for official acts, Smith wants to make sure that any such recognition wouldn’t interfere with trying Trump in the federal election interference case, which has already been substantially delayed.
“Even assuming that a former President is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution,” Smith’s office wrote to the justices Monday. The special counsel went on:
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.
More specifically, Smith urged the court that, even if it were to find that some form of immunity exists for official acts, “that immunity should not preclude all evidentiary uses of official acts in a trial based on petitioner’s [Trump’s] purely private conduct.” The reason that that line is important is that the court is technically considering a broader question: “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”
In answering that broader question, it’s unclear to what extent the court will address how exactly that applies to Trump’s case and potential trial. So in addition to obviously disagreeing with the former…
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