Opinion: Jack Smith’s ingenious response to Trump’s immunity defense

Editor’s Note: Norman Eisen, who served as counsel to House Democrats in the first Trump impeachment and as White House ethics czar in the Obama administration, is a senior fellow at Brookings. Joshua Kolb served as law clerk for the Senate Judiciary Committee. The views expressed in this commentary are their own. View more opinion on CNN.

On Monday, special counsel Jack Smith asked directly for Supreme Court review of whether former President Donald Trump has presidential immunity for crimes he allegedly committed while in office, bypassing the appellate court. It is an ingenious move by the prosecutor to expedite the process, one that should succeed in preserving his all-important March 4 trial date, if the high court follows its own precedents on skipping the appellate courts in cases of exceptional national import.

Trump’s demand that courts throw out on “presidential immunity” grounds Smith’s prosecution of Trump for allegedly attempting to overturn the 2020 election was the most consequential pretrial motion of the entire case. Granting Trump’s request for immunity would not only have derailed the case but also elevated future presidents above the law.

Norm Eisen - Courtesy of Norm Eisen
Norm Eisen - Courtesy of Norm Eisen
Joshua Kolb - CJ Studios
Joshua Kolb - CJ Studios

Before trial court Judge Tanya Chutkan, Trump argued that the founders of our nation and the framers of the Constitution wanted the president to be able to serve in office without being inhibited by fear of future prosecution by political opponents. He pointed to legal sources expressing this protection ranging from the Federalist Papers to the seminal Supreme Court case of Nixon v. Fitzgerald. That civil case established an extremely deferential rule of immunity, holding that a president is immune for any actions arguably falling within the scope of his official duties so long as they are not outside the “outer perimeter” of those job responsibilities as president.

Trump had argued and will undoubtedly say again to the Supreme Court that the federal executive branch has the responsibility to make sure federal elections are lawful. Accordingly, as the head of that branch, he contends he was overseeing an unquestioned federal power in his conduct surrounding the 2020 election and therefore may not be prosecuted under the principles of presidential immunity. Or so the argument goes.

Not so fast, prosecutors successfully argued in their brief, and will now advocate before the Supreme Court. They pointed out that the Fitzgerald case was a civil matter, where the stakes are much lower and the rules different. Criminal cases are reserved for the most serious misconduct in our judicial system, and neither Fitzgerald nor any other case has ever created the kind of blanket presidential criminal immunity Trump seeks.

Chutkan correctly sided with the government when this argument was before her a few weeks ago — and the Supreme Court should do the same. The principle upon which our nation was founded and that remains at the center of our justice system today is that no person, even a former president, is above the law. Giving a president absolute immunity would grant him essentially monarchical powers, antithetical to our history and our rule of law system.

As a practical matter, DOJ has pointed out that the implications of Trump’s position 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.” That can’t be right.

Still, because this issue remains unresolved after our 234-year constitutional history, it now goes to the Supreme Court (assuming they accept Smith’s petition). As we have previously argued, it is ludicrous to suggest that Trump’s actions in the wake of the 2020 election fell within the “outer perimeter” of his responsibilities as president. Presidents have no official role in adjudicating who won state-run elections, and the conduct here was the political machinations of a failed candidate, not the official duties of the commander-in-chief.

We think the Supreme Court will agree with Chutkan. In Trump v. Thompson, she authored the now-famous line that “Presidents are not kings, and Plaintiff is not President,” referring to Trump. She thereby harkened back to our nation’s origins to reject Trump’s claim that sweeping executive privilege blocked the January 6 Committee from subpoenaing his presidential records. That is a close cousin to Trump’s claim here that sweeping executive immunity blocks the special counsel from prosecuting him.

The justices will have to contend with one other Trump legal sally that the lower court also had to decide, but it should not detain them for long. Trump argues that a president can only be prosecuted if he is first impeached and convicted. But that nonsensical view appears nowhere in the Constitution, as the DOJ has long maintained. Both of us have worked for Congress, one as counsel for a presidential impeachment and trial, and we would have been laughed out of our jobs had we advanced such an argument. We think the Supreme Court will give it the back of the hand.

But the high court must move briskly. In an ordinary case, such complex legal issues can take years to wind their way through all the way up to the Supreme Court. The commencement of trial is sometimes held until that painstakingly slow progress is concluded.

That is a luxury the country cannot afford. We need to know whether one of the leading candidates for the White House criminally abused the powers of the presidency to try to hold onto that office, which he seeks once more to attain.

That resolution will only come once he is judged by a jury of his peers. In two other landmark precedents dealing with comparable executive powers, United States v. Nixon and Trump v. Thompson, all proceedings were completed in a little over three months in both cases. That includes Supreme Court review. Whichever course the court takes here, that same expedited timetable must be adopted to avoid any disruption of the trial scheduled for March.

In a positive sign, the court on Monday immediately granted Smith’s request for expedited consideration of whether or not to grant cert. That doesn’t mean the court will take up the merits of the case, but it ordered Trump to file his response to the motion for expedition by December 20. That is lightning speed by Supreme Court standards and a good if preliminary sign that the immunity question may be resolved in time to keep the March trial date.

That coming Trump trial is not only a narrow attempt to hold him personally accountable. The verdict may well determine whether we continue as a democracy or put an autocrat in the White House. For the sake of our nation, Trump’s baseless absolute immunity defense must be rejected — and fast.

This article has been updated with news of special counsel Jack Smith’s request to the Supreme Court Monday.

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