Special Counsel Jack Smith took aim Thursday night at President Donald Trump’s bid to have his 2020 election case dismissed based on presidential immunity, rejecting it as unsupported by American history.
Pointing to examples like the prosecution of the third Vice President, Aaron Burr, and former President Richard Nixon’s pardon, prosecutors said in their 54-page filing that no “legal principle, case or historical practice” establishes the idea that former presidents have absolute immunity from criminal prosecution for actions taken in office. Trump’s legal team argued in a filing early October that actions outlined in Smith’s indictment, including communicating with state lawmakers and members of Congress about election related matters and directing the organizing of slates of electors, cannot be subject to criminal charges because they fell within Trump’s official duties.
Trump’s claim undermines the principle that “no one is above the law,” prosecutors argued. While sitting presidents have immunity from criminal prosecution, former presidents do not, even if they maintain immunity from civil liability for official conduct, prosecutors wrote.
“Throughout American history, there have been federal criminal prosecutions of high-ranking officials from all three branches of the federal government— including the Vice President, members of the Cabinet, Senators, Representatives, and judges as well as of governors, mayors, sheriffs, and more,” Smith’s team wrote. “Far from chilling public officials in the exercise of their duties, these prosecutions have helped ensure that officials and citizens alike know that ours is a system based on the rule of law, applicable without fear or favor to even the most powerful public officials.” (RELATED: Trump Moves To Dismiss 2020 Election Case Based On Presidential Immunity)
ADEL, IOWA – OCTOBER 16: Republican presidential candidate former President Donald Trump arrives for a campaign event at the Dallas County Fairgrounds on October 16, 2023 in Adel, Iowa. Trump is also scheduled to speak at a rally in nearby Clive later in the afternoon. (Photo by Scott Olson/Getty Images)
Prosecutors called the implications of Trump’s immunity claim “startling.”
“It would grant absolute immunity from criminal prosecution to a president who accepts a bribe in exchange for a lucrative government contract for a family member; a president who instructs his FBI Director to plant incriminating evidence on a political enemy; a president who orders the National Guard to murder his most prominent critics; or a president who sells nuclear secrets to a foreign adversary,” Smith’s team wrote.
Earlier this week, Judge Tanya Chutkan partially granted prosecutors’ request to place a gag order on Trump for the 2020 election case. Under the order, which Trump will appeal, the former president is restricted from making statements targeting Smith, his staff, witnesses and court personnel.
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