Former president Donald Trump yesterday filed his opening brief in the Supreme Court in Trump v. United States. That case presents the question, crafted by the Court, “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.” The case has been set for argument on April 25.
Yesterday was also the deadline for amicus briefs in support of Trump. As I write this, there are some twenty or so amicus briefs posted on the Court’s docket, with perhaps more to come. Special counsel Jack Smith’s brief on behalf of the United States is due on April 8, as are amicus briefs in support of the United States. Trump’s reply brief is due April 15.
I made some tentative skeptical observations on Trump’s position a few weeks ago, based on the briefing on Trump’s stay application (which the Court treated as a petition for certiorari). I will probably defer further comments until the briefing is complete. I offer here some key excerpts from the introduction and summary of argument in Trump’s brief:
A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents. The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency….
I. A former President enjoys absolute immunity from criminal prosecution for his official acts. Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers. From Marbury [v. Madison (1803)] through [Nixon v.] Fitzgerald [(1982)], and beyond, this Court has consistently held that Article III courts cannot sit in judgment directly over the President’s official acts, whether before or after he leaves office. A fortiori, the courts cannot sit in criminal judgment over him and imprison him based on his official acts.
The Impeachment Judgment Clause reflects the Founders’ understanding that only a President “convicted” by the Senate after impeachment could be criminally prosecuted. The Constitution authorizes the criminal prosecution of a former President, but it builds in a formidable structural check against politically motivated prosecutions by requiring a majority of the House and a supermajority of the Senate to authorize such a dramatic action. The Founders thus carefully balanced the public interest in ensuring accountability for Presidential wrongdoing against the mortal danger to our system of government presented by political targeting of the Chief Executive….
II. The question of a former President’s criminal immunity presents grave constitutional questions that strike at the heart of the separation of powers. Accordingly, in addition to the clear provision of Presidential immunity from criminal prosecution based on the Executive Vesting Clause and the separation of powers, the doctrine of immunity dictates that generic criminal laws should not be construed to apply to the President or his official acts…. None of the criminal statutes charged in the indictment contains anything resembling a clear statement that it applies to the President or to his official acts….
III. The Court should dismiss the indictment. If it somehow does not, in assessing “to what extent” criminal immunity applies to former Presidents, the Court should be guided by four considerations. First, consistent with Fitzgerald, the scope of immunity should extend to the “outer perimeter of a President’s official acts,” and its protection should be absolute, not qualified. Establishing criminal immunity as coextensive with a President’s civil immunity follows the compelling logic of Fitzgerald. It reflects this Court’s preference for bright-line rules, rather than case-by-case adjudication, for questions involving the separation of powers. Moreover, it protects Article III courts from being drawn into the vortex of political dispute every time immunity questions are raised.
Second, if the Court determines that immunity exists but requires fact-based application, the Court should follow its standard practice and remand to the lower courts to apply that doctrine in the first instance….
Third, if the Court adopts a form of qualified immunity, which it should not do, the Court should emphasize two fundamental features of that doctrine. First, the breadth of qualified immunity’s protection corresponds to the breadth of an official’s duties—which, in the President’s case, are extraordinarily, and almost completely, broad. Second, qualified immunity requires a “high degree of specificity” in defining unlawful conduct that “applies with obvious clarity” to the situation, rendering the unlawfulness of the challenged conduct “beyond debate.” …
Fourth, the Court should reject the D.C. Circuit’s alternative approach of denying a President criminal immunity when his conduct is allegedly motivated by the desire to remain in power unlawfully….