Trump Fires Back at Jack Smith’s Arguments in Presidential ‘Immunity’ Appeal

Donald Trump's lawyers in a court filing Tuesday reinforced the former president's request for a federal appeals court to throw out the charges against him in the Washington, D.C. election-subversion case.

In a 41-page legal brief firing back at Special Counsel Jack Smith's filing on Saturday, Trump's legal team urged the D.C. Circuit Court of Appeals to back their client's claim of presidential "immunity" from criminal charges.

"President Trump has immunity from prosecution for his official acts," the former president's lawyers, led by former Missouri Solicitor General John Sauer, argue to open their brief.

They go on to say that under the Constitution's checks-and-balances the judicial branch "cannot issue equitable relief directly against the President’s official acts, including his power under the Take Care Clause. So also, it cannot sit in criminal judgment over them."

The Constitution's Impeachment Judgment Clause, Trump's lawyers continue, "presupposes the existence of Presidential criminal immunity."

Citing early American leaders Alexander Hamilton, James Madison, Chief Justice John Marshall and Associate Justice Joseph Story as supporters of their arguments, Trump's personal lawyers continue: "The 234-year unbroken tradition of not prosecuting Presidents for official acts, despite vociferous calls to do so from across the political spectrum, provides powerful evidence of it. Analogous immunity doctrines rooted in the separation of powers demonstrate the basis and existence of criminal immunity for Presidents. The likelihood of mushrooming politically motivated prosecutions, and future cycles of recrimination, are far more menacing and crippling to the Presidency than the threat of civil liability."

At issue is Trump's appeal of U.S. District Judge Tanya Chutkan's Dec. 1 order denying Trump's motion to dismiss the charges on the grounds that he could not be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."

In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.

Trump's legal team responded to Chutkan's denial by filing both an appeal with the D.C. Circuit Court of Appeals seeking reconsideration of the motion to dismiss charges and a motion to "stay," or pause, the proceedings in the case "pending the final resolution of his recently filed appeal."

Smith's office countered by filing both a motion seeking an expedited review by the D.C. Circuit Court of Appeals of Trump's appeal, and a petition for writ of certiorari with the U.S. Supreme Court asking the high court to hear the appeal before the D.C. Circuit makes a decision.

The Supreme Court on Dec. 22 denied Smith's petition to take up the case without first giving the mid-level D.C. Circuit Court of Appeals a chance to issue a ruling.

Both Smith and Trump's legal team filed opposing briefs on the expedited schedule proposal with the D.C. Circuit. On Dec. 13, the D.C. Circuit issued an order agreeing to consider the case on an expedited basis.

A three-judge panel of the D.C. Circuit is scheduled to convene at 9:30 a.m. on Jan. 9 to hear arguments in the case.

The panel hearing arguments will consist of Circuit Judges Karen Henderson, J. Michelle Childs and Florence Pan. Henderson was appointed by former President George H. W. Bush, while Childs and Pan were appointed by President Joe Biden.

Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin the day before Super Tuesday on March 4, though that timeline is very much uncertain given the still-unfolding legal drama surrounding the immunity question.