A group of constitutional law scholars and former government officials are asking the Supreme Court to deny former President Donald Trump’s request that the justices halt a ruling against his claims to presidential immunity.
The U.S. Court of Appeals for the DC Circuit had upheld DC Judge Tanya Chutkan’s decision not to dismiss Special Counsel Jack Smith’s prosecution. It further mandated that Judge Chutkan’s proceedings would resume unless President Trump showed he filed for relief with the U.S. Supreme Court.
The amicus briefs filed on Feb. 13 argued that the legal bounds of presidential immunity didn’t shield President Trump from criminal prosecution.
Among the amici were several former members of Congress, including former Sen. John Danforth (R-Mo.), who served as a special counsel under President Bill Clinton and as United Nations ambassador under President George W. Bush. Others included many former Justice Department officials, like Donald Ayer, deputy attorney general under President George H.W. Bush. Former Judge J. Michael Luttig and multiple former executive officials signed onto the brief as well.
By contrast, President Trump’s appeal had warned that ruling against him would set a precedent that would hinder future administration’s decision-making.
Separation of Powers
The professors’ brief claimed that “the presidential immunity doctrine is designed to prevent the judicial branch from undermining the president’s capacity to discharge fully and fearlessly his constitutionally assigned roles.”“It would be entirely improper to apply that doctrine to allow a former president to escape federal criminal prosecution—especially prosecution for crimes involving the use of violence and deception to undermine the results of a valid election and incapacitate Congress in the discharge of its constitutional obligations,” the professors said.
Harvard Law Professor Laurence Tribe joined the brief with four other professors from law schools at the University of Missouri, Ohio University, the University of Michigan, and University of North Carolina. Keith E. Whittington, a professor of politics at Princeton University, also joined the brief.
Their brief focused on constitutional history and disputing President Trump’s contention that the Impeachment Judgment Clause required Congress to try him before he could be criminally prosecuted. It also disputed the idea that impeachment proceedings triggered concerns about Double Jeopardy or the idea that a person cannot face potential punishment twice for the same offense.
‘Official’ Duties of the President
The briefs came on the same day Chief Justice John Roberts asked for the DOJ’s response to President Trump’s application to stay an order from the U.S. Court of Appeals for the DC Circuit.
As President Trump’s brief stated, his “claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question.”
In 1982, the Supreme Court held in Nixon v. Fitzgerald that presidents enjoyed immunity from civil liability while performing “official acts” within the “outer perimeter” of their authority. President Trump has argued that Mr. Smith’s indictment covers “official acts” that he carried out while in office.
The brief from Mr. Danforth and others suggested that the distinction between “official” and unofficial acts was irrelevant in the context of criminal wrongdoing. President Trump has denied any wrongdoing.
“Preservation of the Presidency designed by Article II requires rejection of immunity from prosecution for a President’s engaging in violations of federal criminal statutes to alter declared presidential election results, whether that conduct consists of acts as a candidate, official acts, or both,” the brief read.
The officials, meanwhile, argued that President Trump’s use of the Vesting Clause was “backwards.” President Trump’s actions, they argued, were designed to usurp the presidency from then-President-Elect Joe Biden and, therefore, violated the clause’s provision that a president’s term last four years.
“Any President who loses reelection, but violates federal criminal statutes to try to usurp the office of the Presidency beyond his four-year term, would be threatening to violate the Executive Vesting Clause and the Twentieth Amendment in two inseparable ways,” the brief read.
“First, that President would be threatening to extend the four-year term in which executive power has been vested by election in that President. Second, that President would be threatening to prevent the vesting of the authority and functions of the Presidency in the newly elected President.”
