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Washington — Former President Donald Trump urged the Supreme Court on Tuesday to find that former presidents are entitled to sweeping immunity from criminal prosecution for acts taken while in office, arguing that the “long history of not prosecuting” his predecessors demonstrates that the power to do so does not exist.
“From 1789 to 2023, no former, or current, president faced criminal charges for his official acts — for good reason,” Trump’s lawyers told the court. “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.”
In the 51-page filing, lawyer D. John Sauer urged the Supreme Court to reverse a lower court’s decision that rejected his claim of immunity and order the charges filed against him to be dismissed.
Sauer wrote that the consequences of the Supreme Court’s eventual decision on presidential immunity are not confined only to Trump, but rather “will affect the presidency itself for the rest of our nation’s history.”
“This court should not adopt a rule that creates the appearance of a President Trump-only gerrymander,” he said. “That would be the antithesis of the rule of law.”
The legal battle over immunity
The Supreme Court agreed last month to review a decision from the federal appeals court in Washington that found Trump can be prosecuted for alleged attempts to subvert the transfer of presidential power after the 2020 election and scheduled arguments for April 25.
The question the justices are considering is “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.” The phrasing indicates they are not weighing Trump’s claim that presidents can be criminally charged only if they were first impeached by the House and convicted by the Senate.
Special counsel Jack Smith, who is prosecuting Trump, has argued the former president engaged in fraudulent conduct to stay in office, and warned that granting him immunity from criminal liability for efforts to overturn his electoral defeat “contravenes bedrock constitutional principles and threatens democracy itself.” A brief from Smith is due April 8.
While the Supreme Court has said presidents are immune from liability in civil matters, it has never before decided whether a former president can face criminal charges for alleged acts within his official responsibilities. Trump is the first former president to be indicted, and he has pleaded not guilty to all charges.
The Supreme Court’s consideration of the immunity issue has already spilled over into two other criminal prosecutions Trump is facing — the first in state court in New York and the second in federal court in South Florida.
In the New York case, in which Trump pleaded not guilty to charges he falsified business records, his attorneys asked a Manhattan judge to delay the trial until after the Supreme Court rules on whether he is shielded from criminal prosecution.
In South Florida, Smith charged Trump with 40 counts related to his alleged mishandling of sensitive government documents after leaving the White House. The former president is seeking to dismiss the charges on the immunity grounds and has pleaded not guilty.
Proceedings in the D.C. case have been on hold since December as Trump appealed a decision from U.S. District Judge Tanya Chutkan rejecting his claim of broad immunity. The case will remain paused until the Supreme Court issues its ruling, which is expected by the end of June.
A decision in Trump’s favor would bring to an end Smith’s prosecution of the former president in Washington. If the court finds he is not entitled to legal protections and allows the criminal case to proceed, it’s unclear whether a trial could take place before the 2024 presidential election, in which Trump and President Biden are their respective parties’ presumptive presidential nominees.
Smith had asked the Supreme Court in December to intervene in the dispute over whether Trump can face criminal charges, but the justices declined to fast-track the case, allowing the federal appeals court to take up the matter first.
In early February, a three-judge panel ruled that Trump is not entitled to presidential immunity from federal prosecution for “assertedly ‘official acts.'”
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote in its opinion. The D.C. Circuit gave Trump until Feb. 12 to ask the Supreme Court to pause the decision, setting up the showdown currently before the justices.
Trump’s arguments to the Supreme Court
Citing recent impeachment proceedings initiated by Congress over the past 26 years — Trump was impeached twice by the House during his sole term in office, and acquitted by the Senate in both instances — his legal team argued that allowing a former president to face criminal charges would have ramifications for future holders of the office.
“Once our nation crosses this Rubicon, every future president will face de facto blackmail and extortion while in office, and will be harassed by politically motivated prosecution after leaving office, over his most sensitive and controversial decisions,” Sauer wrote. “That bleak scenario would result in a weak and hollow President, and would thus be ruinous for the American political system as a whole.”
The threat of future prosecution “will cripple the current presidential decisonmaking,” he argued, and presents a “mortal threat to the presidency’s independence.”
Sauer also told the court that none of the criminal statutes that Trump is charged with violating contain clear statements that they apply to the president or acts undertaken while in office.
“There is no indication that Congress intended to provoke the ultimate inter-branch conflict by abrogating presidential immunity and authorizing the prosecution of the president through sweeping, vaguely phrased criminal laws,” Sauer wrote in the filing.
He argued that federal courts have no authority to sit in criminal judgment over a president’s official acts.
“Because the courts cannot examine the President’s official acts, they cannot entertain charges, impose judgment, and imprison him on the basis of those official acts. They cannot conduct a jury trial based on his official acts,” Trump’s lawyer claimed.
He went to repeat his argument that a president cannot be prosecuted unless he is first impeached by the House and convicted by the Senate.
The immunity case is one of several involving Trump that the high court has taken up. Earlier this month, the justices overturned ablockbuster rulingfrom the Colorado Supreme Court that ordered Trump off the state’s presidential primary ballot under an obscure provision of the Constitution. The courtruled unanimouslythat states cannot bar Trump from the ballot using Section 3 of the 14th Amendment, but four of the justices split from the majority’s determination that only Congress could enforce the clause.
The Supreme Court is also set to hear arguments on April 16 over thereach of a federal obstruction lawthat has been used to charge scores of defendants for their alleged actions during the Jan. 6, 2021, attack on the U.S. Capitol. Trump has been charged with violating the statute, and the court’s decision could impact whether that count and one other stands.
