Jack Smith Files a Brief to SCOTUS Rejecting Trump's Immunity Defense
By: Charles P. Pierce (Esquire)
S E E D E D C O N T E N T
The special counsel filed a brief to the Supreme Court demolishing Trump's absurd immunity claims. It should be studied at every law school in the country.
By Charles P. PiercePublished: Apr 09, 2024 11:28 AM ESTSave ArticleThe Washington Post//Getty Images
On Monday night, special counsel Jack Smith sent a filing to the Supreme Court of the United States. It concerned a case that the court never should have taken up in the first place, since the basic cause of action is an absurd waste of time. The court documents say that the United States of America is the defendant in an action based on a theory of executive sovereignty that should have gone out with the Plantagenets. Yet here we are. On April 25, the court will hear oral arguments concerning the former president*'s contention that he is immune from prosecution for any action, no matter how criminal, that he may have taken during his four-year vandalism spree in the executive branch. Smith demolished this ridiculous contention with one line in his latest finding.
The President's constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.
That is the whole megillah right there in one simple, declarative sentence. That is the straight and true path out of the dark wonderland of delay that the former president* and his Double-A team of lawyers have spun around his crimes in office and his unseemly lust for authoritarian nirvana. (Question: Does this guy have a "seemly" lust for anything?) That is the lighted lane back to actual reality and blessed common sense.
Smith's filing is a classic bit of business—clearly written and scrupulously argued. It should be studied in every legal research class in every law school in the country. It leaves the carefully manufactured conservative majority on the court with no place to stand if they wish to accept this unlettered swill as a legitimate argument. Not that some of them—looking at you, Clarence and Sam—won't try to carve one out. But there is no way to do it that won't make them look (a) like tools of the MAGA mob and (b) unimaginably stupid. Teeth right to the bone.
Petitioner contends that the lack of any prosecutions of former Presidents until this case reflects the settled conclusion that criminal immunity precludes such a prosecution. But this prosecution is a historical first not because of any assumption about immunity but instead because of the singular gravity of the alleged conduct. The indictment describes petitioner's efforts to "remain in power despite losing the 2020 election." The severity, range, and democracy-damaging nature of the alleged crimes are unique in American history. Other than former President Nixon, whose pardon precluded criminal prosecution, petitioner can point to no former President alleged to have engaged in remotely similar conduct.
Even assuming that a former President is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution. First, a President's alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized, even if other conduct should be. Second, at the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner's effort to remain in power by fraud.
This has been the too-often-ignored logic behind Smith's prosecution all along. It is an unprecedented legal action because the crimes alleged are unprecedented and the person alleged to have committed them was an unprecedented kind of crook. If the law can't reach those crimes, then the law really is an ass.
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