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Politics

Trump’s claim of immunity from prosecution defies American history, special prosecutor says


“The implications of the theory of unlimited defendant immunity are startling,” prosecutor James Pearce and other lawyers on Smith’s team argued. “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 asks his FBI director to plant incriminating evidence on a political enemy; a president who orders the National Guard to assassinate his most prominent critics; or a president who sells nuclear secrets to a foreign adversary.

The dispute is the first substantive showdown over the legal framework that will define prosecutions of Trump for plots he allegedly led in trying to overturn the 2020 election.

Trump’s lawyers argued earlier this month that he simply could not be prosecuted for his efforts to overturn this election because those efforts were tied to his official responsibility as president to safeguard federal elections. But prosecutors said Trump’s efforts to illegally pressure state and federal officials to overturn a legal election were fundamentally political in nature and not part of his job. And in any case, prosecutors added, such a sweeping assertion would subvert the Constitution — particularly because the founding document contemplates prosecuting former presidents for crimes that may have occurred while they were in office.

While Trump is known for wrapping himself in the flag, sometimes literally, Smith’s team has described his legal position as essentially un-American — beginning his brief by dismissing his own comparisons to Washington and Lincoln.

“Throughout American history, federal criminal prosecutions have been brought against high-ranking officials from all three branches of the federal government – ​​including the vice president, Cabinet members, senators, representatives and judges – as well as against governors, mayors, sheriffs, and more,” prosecutors wrote. “Far from deterring public officials from carrying out their duties, these prosecutions have helped ensure that public officials and citizens know that our system is based on the rule of law, applicable without fear or favor, even to public officials the most powerful. »

Early in their brief, Smith’s attorneys cited an authority that the judge in the case, Tanya Chutkan, is no doubt familiar with: her 2021 ruling rejecting Trump’s attempt to shield his presidential papers from the House committee investigating the January 6 insurrection. “Presidents are not kings,” Chutkan wrote.

Although this is a civil dispute, prosecutors say the reasoning she cited two years ago applies even more to criminal charges.

“The principle that no one is above the law underpins the universal consensus that a president may be subject to criminal prosecution at any given time,” the document states.

Prosecutors also flatly rejected Trump’s claim that his acquittal in a 2021 impeachment trial — for allegedly inciting the Jan. 6 attack on the Capitol — precluded his criminal prosecution of the matter two years later. late. In particular, they said, Trump took the exact opposite position during this trial, asserting that he could not be tried by the Senate as a former president because he was now subject to possible lawsuits.

Smith’s team also cited statements from more than 30 Republican senators — including Republican Party leader Mitch McConnell — who at the time agreed with Trump, rejecting the Senate trial because they considered the criminal justice system as the appropriate forum for accountability.

The impeachment charge, prosecutors added, related to inciting the Jan. 6 attack, while his criminal charges allege he hatched three plots to subvert state and federal election processes for months before the violence at the Capitol.

Trump faces two criminal cases focused on his attempt to stay in power despite the election results: the federal case brought by a grand jury in Washington in early August and another brought by a state court grand jury in Fulton County, Georgia, a couple weeks later.

Resolving the presidential immunity issue in the DC case could influence the Georgia case, particularly if Trump appeals before trial and the immunity issue ends up quickly ending up before an appeals court or the United States Supreme Court.

Trump is also making an aggressive immunity argument in a series of civil lawsuits filed against him by people injured or terrorized during the Jan. 6 assault on the Capitol. A federal judge in Washington rejected his request for absolute immunity in those suits, but Trump appealed to the Washington Circuit Court of Appeals.


Politico

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