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re: Giuliani Blames TRUMP For Bankruptcy-'He Never Paid His Election Case Legal Fees’
In History Justice Kavanaugh Destroyed TRUMPS Attempt at Immunity Claim- NO 'Pardon' For NIXONS' Attempt 25 Years Ago
Federal Prosecutors Shot Back at TRUMPS Bid to Have His CRIMINAL Charges Thrown Out.
TRUMPS Claim of immunity from prosecution defies American history, special counsel argues
The Guardian 14 DEC 2023
Donald Trumps lawyers contended earlier this month that he can’t be prosecuted for efforts to overturn that election because they related to his official responsibility as president
After Special Counsel Jack Smith asked the Supreme Court to take up TRUMPS claims of presidential immunity, MSNBC analyzes a 25-year-old filing from Brett Kavanaugh that shoots down the legal arguments of the president who would go on to appoint him to the Supreme Court.
Justice Department prosecutors asked the Supreme Court Monday to decide if former President Donald Trump can get out of the federal indictment for trying to overturn the 2020 election, asking the court to decide “promptly” whether Trump is immune from the charges against him in order to have the dispute resolved before the 2024 election.
Donald Trumps argument that as a former president he enjoys “absolute immunity” from criminal prosecution is sharply refuted by nearly all of American history, special counsel Jack Smith argued Thursday.
Invokes US v. Nixon
The special counsel’s team is pointing to a similar maneuver employed in US v. Nixon, the 1974 Supreme Court case in which the justices rejected then-President Richard Nixon’s claims of presidential privilege in a subpoena fight over Oval Office tapes. In that case, the high court moved quickly to resolve the matter so that one of the Watergate-era cases could proceed swiftly.
“Historically, the Supreme Court has rarely agreed to this kind of gambit – to take up an appeal before a federal court of appeals has had a chance to do so”
“But not only has the court shown far more willingness to expedite appeals since 2019, even before then, this was the exact kind of case in which it would have agreed to move quickly,” Vladeck added.
In their appeal to the Supreme Court, prosecutors with the special counsel wrote that “nothing could be more vital to our democracy” than holding a former president accountable if they break the law.
In a 54-page filing taking on Trump’s sweeping bid to derail the federal criminal case against him over his efforts to upend the results of the 2020 election, Smith’s team cited the prosecution of Aaron Burr, the pardon of Richard Nixon, the civil lawsuit against Bill Clinton and Trump’s own comments on his impeachment trial in 2021 for allegedly inciting an insurrection at the Capitol.
In every instance, prosecutors said, the Constitution and those tasked with upholding it make clear that former presidents can be prosecuted criminally for actions they took while in office.
“The implications of the defendant’s unbounded immunity theory are startling,” prosecutor James Pearce and other lawyers from 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 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.”
The dispute is the first substantive showdown over the legal framework that will define the prosecution of Trump for conspiracies he allegedly led while attempting to subvert the 2020 election.
Trump’s lawyers contended earlier this month that he simply can’t be prosecuted for efforts to overturn that election because they related to his official responsibility as president to safeguard federal elections.
But prosecutors said Trump’s efforts to illegally pressure state and federal officials to subvert a lawful election were fundamentally political in nature and not part of his job. And in any case, prosecutors added, such a sweeping assertion would turn the Constitution on its head — particularly because the founding document envisions the prosecution of former presidents for crimes that may occur while in office.
While Trump is known for wrapping himself in the flag, sometimes literally, Smith’s team painted his legal position as essentially un-American — beginning their brief by rejecting his own comparisons to Washington and Lincoln.
“Throughout American history, there have been federal criminal prosecutions of high-ranking officials from all three branches of the federal government — including the Vice President, members of the Cabinet, Senators, Representatives, and judges — as well as of governors, mayors, sheriffs, and more,” prosecutors wrote.
“Far from chilling public officials in the exercise of their duties, these prosecutions have helped ensure that officials and citizens alike know that ours is a system based on the rule of law, applicable without fear or favor to even the most powerful public officials.”
Well into their brief, Smith’s prosecutors cited one authority the judge overseeing the case, Tanya Chutkan, is undoubtedly familiar with: her 2021 decision rejecting Trump’s bid to shield his presidential papers from the House committee investigating the Jan. 6 insurrection. “Presidents are not kings,” Chutkan famously wrote.
While that was a civil dispute, prosecutors contend the rationale she cited two years ago applies even more strongly to criminal prosecutions.
“The principle that no one is above the law underlies the universal consensus that a president may be subject to criminal prosecution at some point,” the brief says.
Prosecutors also sharply rejected Trumps contention that his acquittal in a 2021 impeachment trial — for allegedly inciting the Jan. 6 attack on the Capitol — barred his criminal prosecution on the matter two years later. Notably, they said, Trump took the precise opposite position during that trial, contending that he couldn’t be put on trial by the Senate as a former president because he was now subject to potential criminal prosecution.
Smith’s team also cited the statements of more than 30 Republican senators — including GOP leader Mitch McConnell — who agreed with Trump at the time, rejecting the Senate trial because they viewed the criminal justice system as the proper forum for accountability.
The impeachment charge, prosecutors added, was about inciting the Jan. 6 attack, while his criminal charges allege that he mounted three conspiracies 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 remain in office notwithstanding the election results: the federal one brought by a grand jury in Washington in early August and another brought by a state-court grand jury in Fulton County, Ga., a couple of weeks later.
The resolution of the presidential immunity issue in the D.C. case could influence the case in Georgia, particularly if Trump pursues a pretrial appeal and the immunity issue ends up landing quickly before an appeals court or the U.S. Supreme Court.
Trump is also pursuing an aggressive immunity argument in a series of civil lawsuits brought against him by people injured or terrorized during the Jan. 6 assault on the Capitol.
A federal judge in Washington rejected his absolute immunity claim in those suits, but Trump has appealed to the D.C. Circuit Court of Appeals.
DOJ Takes Trump To Supreme Court: Asks Justices If Trump Has Immunity In Criminal Election Case
MORE;
Judge Pauses TRUMP Election Interference Case in an Order That Could Delay March Trial
The federal judge overseeing Donald Trumps 2020 election interference case has temporarily paused all procedural deadlines while appeals over a major issue play out – which could lead to his March 2024 trial date being pushed back.
The order from Judge Tanya Chutkan acknowledged that she no longer has jurisdiction over aspects of the criminal case while the DC Circuit Court of Appeals considers whether Trump is immune and can be tried.
In a bid to speed that appeals process, special counsel Jack Smith has asked the Supreme Court to step in.
Special counsel Jack Smith and former President Donald Trump
Chutkan said in her order that the trial date of March 4, 2024, could be affected, and that she would reconsider that date when the appeals process has concluded.
Chutkan, however, said that the pause does not bar her from enforcing measures she has already imposed to “safeguard the integrity of these proceedings,” including the limited gag order against Trump and his conditions of release.
“(I)f a criminal defendant could bypass those critical safeguards merely by asserting immunity and then appealing its denial, then during the appeal’s pendency, the defendant could irreparably harm any future proceedings and their participants,” she wrote.
Earlier this week, Smith asked the US Supreme Court to take the rare step of skipping over the federal appeals court to quickly decide fundamental issues to the Trump case – whether the former president has immunity from criminal prosecution for alleged crimes he committed while in office, and whether Trump is protected by double jeopardy because he was acquitted by the Senate during his impeachment trial.
Prosecutors simultaneously asked the DC Circuit to expedite its review of the immunity matter, so that the case can be quickly appealed to the high court under the regular appeals process if the justices don’t agree to immediately hear the case.
Defense attorneys have pushed back against an expedited appeals process, saying that prosecutors are trying to disrupt their holiday travel plans and to “disenfranchise” voters in 2024.
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