Trump is losing the immunity argument, Jack Smith is defending democratic principles

Yesterday, Special Counsel Jack Smith’s team dropped their most powerful brief yet in the D.C. Court of Appeals.

Arguing against Trump’s notion of absolute presidential immunity, the brief starkly highlighted the threat that such a blanket protection would pose to democracy, bringing in a host of historical sources as well as legal analysis and repeatedly driving home how grave Trump’s alleged crimes were for the fabric of society. 

Pushing back on the former president’s claim that his prosecution “threatens…to shatter the very bedrock of our Republic”, the Special Counsel’s office wrote “to the contrary: it is the defendant’s claim that he cannot be held to answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election, that threatens the democratic and constitutional foundation of our Republic.”

In his own brief, Trump had relied upon the civil immunity afforded by the Nixon v. Fitzgerald case, claiming that the actions he took to overthrow the election were within the ‘outer perimeter’ of his presidential responsibilities. Unfortunately for him, just this month the D.C. Court of Appeals ruled in Blassingame v. Trump – a civil case – that he can be sued for his actions in relation to January 6 because the steps he took to “obtain a second term despite his defeat” were not official presidential acts and therefore not protected under the type of immunity conferred by the Nixon case. Jack Smith’s team reiterated this, noting that “the indictment contains substantial allegations of a plot to overturn the election results that fall well outside the outer perimeter of official Presidential responsibilities."

Trump had also argued that because he was acquitted by the Senate in his second impeachment trial, he couldn’t be prosecuted in this case because of double jeopardy principles. That contention is patently absurd and collapsed under scrutiny from the Government, who quoted Justices Alito and Kavanaugh as well as Alexander Hamilton to skewer the notion. They also surfaced a quote from one of the first Supreme Court Justices, James Iredell, who spoke during the debates on the Constitution at the North Carolina ratifying convention, saying “if the President commits any crime, he is punishable by the laws of his country.”

Bringing in extensive historical analysis highlighted the fact that Trump’s claim of immunity would upend America as we know it, both as a country and as an ideal – a place where everyone is held to the same standard under the law. Accepting absolute presidential immunity would, the Government argued “violate the fundamental principle that no one in this country, not even the President, is above the law."

It would also destroy the foundations of democracy. In the opening pages of the brief, Smith’s team described Trump’s arguments as lacking support “in the separation of powers, constitutional text, history, or precedent”, and that the former president’s advocacy of the concept threatens to “undermine democracy.”

As Judge Luttig, formerly of the federal appeals bench, said during his testimony to the January 6 Select Committee, “a stake was driven through the heart of American democracy on January 6, 2021, and our democracy today is on a knife’s edge”, warning that Trump and his supporters were still “a clear and present danger to American democracy”.  

Democracy itself is indeed on the ballot in 2024. Jamie Raskin, the Democratic representative from Maryland and former member of the January 6 Select Committee has repeatedly stated that the greatest danger to the Republic isn’t policy differences between left and right, it’s the Republican refusal to uphold democratic principles and their increasingly authoritarian bent, noting in 2022 – on the eve of the Select Committee hearings - “We’re never going to be able to successfully deal with climate change if we’re spending all our time fighting the Proud Boys and the Oath Keepers and Ku Klux Klan, and the Aryan nations and all of Steve Bannon’s alt-right nonsense.”

Denying Trump’s claim of absolute immunity is integral to the future of America as we know it. The former president’s team will file their response to the Government’s brief on January 2, just as we start the election year. A week later, the case moves to oral arguments in front of a panel of three Judges. It’s difficult to see any way in which Trump wins this, even before the Supreme Court, where the case will no doubt end up. Some of the conservative Justices are many things, but it’s extremely doubtful that any of them will want to enter the history books as the people who rubber stamped Trump’s ongoing coup and wrote America’s obituary.