Former President Donald Trump is urging the U.S. Court of Appeals for the D.C. Circuit to reject the Biden administration’s argument that his actions surrounding Jan. 6, 2021, weren’t protected under presidential immunity.
“The government’s Statement of the Case ... is legally and factually incorrect,” the Jan. 2 brief from President Trump’s legal team reads. “The government attempts to emphasize the allegedly unlawful manner and purpose of acts alleged in the indictment. ... The allegedly improper manner or purpose of the alleged acts is not relevant.”
The filing came a week before the appellate court is set to hear oral arguments over President Trump’s motion to dismiss on this issue and his claims that special counsel Jack Smith’s prosecution violates the constitutional protection against double jeopardy.
President Trump had argued that the Senate had already acquitted him in response to an article of impeachment for his activities on Jan. 6, 2021. In doing so, he said, it precluded future prosecution over his actions.
Mr. Smith’s team had argued in a Dec. 30, 2023, filing that the U.S. Constitution “limits congressional sanctions for impeachment to removal and disqualification from office; it does not create a double-jeopardy prohibition that protects an impeached but not convicted officer from criminal prosecution.”
It stated that President Trump was “never previously placed in jeopardy” because the “only remedies available in the impeachment proceedings were removal and disqualification.”
“Even if he were, the indictment charges different offenses than were at issue in his impeachment,” the brief reads.
President Trump’s reply argued that it was “beside the point” that “impeachment and criminal prosecution serve distinct goals.”
His legal team contended that the “Impeachment Judgment Clause and principles of double jeopardy independently bar this prosecution. The plain text of the clause, ordinary principles of interpretation, and the decisive weight of historical evidence confirm that a president who was impeached and acquitted is not subject to subsequent prosecution on the same conduct.”
On Dec. 29, 2023, the appellate court issued a decision rejecting President Trump’s attempt to apply presidential immunity to civil claims arising from events on Jan. 6, 2021.
The Justice Department’s filing argued that President Trump wasn’t protected from criminal liability.
“Under separation-of-powers analysis, the president’s unique constitutional status provides immunity from civil liability for official conduct ... but it does not render a former president immune from criminal liability when charged with violations of generally applicable federal criminal statutes,” the filing reads.
‘Paramount Public Interest’
President Trump’s legal team, by contrast, argued that because the Constitution vests executive power in the president, his conduct wasn’t reviewable by courts in the same way that conduct by other executive officers was.U.S. District Judge Tanya Chutkan had rejected President Trump’s motion to dismiss, prompting his appeal to the appellate court. Mr. Smith’s team attempted to fast-track the issue to the U.S. Supreme Court, which ultimately rejected his request.
Also on Jan. 2, the appellate court issued an order “that counsel be prepared to address at oral argument on Jan. 9, 2024, any inquiries by the Court regarding discrete issues raised in the briefs filed by amicus curiae.”
Several amicus briefs have been filed, including one from the group American Oversight, which argued that the appellate court lacked jurisdiction to review the denial of immunity by Judge Chutkan.
Another from former government officials, including President Trump’s former special counsel Ty Cobb, argued that the immunity claim “finds no support in the Constitution’s text or historical practice.”
Yet another brief, by two law professors and former Attorney General Edwin Meese, claims to not support either side’s position in the appeal but argues that Mr. Smith lacked “authority to conduct the underlying prosecution.”
It argues that neither U.S. statutes nor the Constitution “remotely authorized the appointment by the attorney general of a private citizen to receive extraordinary criminal law enforcement power under the title of Special Counsel.”
That issue and others related to President Trump’s D.C. trial could still end up at the U.S. Supreme Court.
The Court of Appeals previously reviewed Judge Chutkan’s controversial gag order, which it narrowed in a December 2023 ruling. President Trump later requested a hearing before the full court rather than just a three-judge panel, which was the format for the prior appellate hearing.
The Supreme Court will likely be asked to weigh in on the gag order. It could also take up other legal issues such as attempts at using the 14th Amendment to remove President Trump from state ballots.
