Special counsel Jack Smith warned in a new filing Saturday that ex-President Donald Trump’s bid for immunity could “license presidents to commit crimes to remain in office.”
The brief lodged in the D.C. Court of Appeals came in response to the ex-president’s claims that he is immune to prosecution for his efforts to undo his 2020 defeat because he survived an impeachment proceeding in the Senate, and because his plotting fell within the powers and duties of his office.
If these arguments—which District Court Judge Tanya Chutkan rejected earlier this month—won out, a president could commit crimes freely so long as he threw up sufficient hurdles to keep two-thirds of U.S. senators from voting to remove him, Smith said.
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“A former president could thus bank on the practical obstacles to impeachment (a remedy designed to remove, not hold criminally accountable, a corrupt officer) to provide a safe harbor insulating him from prosecution once he has left office,” the brief reads, highlighting one potential scenario that might unfold should Trump triumph. “Under the defendant’s framework, the nation would have no recourse to deter a president from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully.”
That was hardly the only apocalyptic vision that Smith and his colleagues conjured. The prosecutors attacked the defense’s claims that Trump’s conspiring with state and federal officials to block President Joe Biden’s victory in the Electoral College fell within the rights and responsibilities of a president to engage with other officials on matters of federal importance.
“That approach would grant immunity from criminal prosecution to a president who accepts a bribe in exchange for directing a lucrative government contract to the payer; a president who instructs the 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,” Smith and his team wrote. “In each of these scenarios, the president could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as commander-in-chief; or engaging in foreign diplomacy.”
