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Sunday, April 14, 2024

Immunity and Insurrection

From Jack Smith's brief in the immunity case:

Even if this Court holds that a former President is entitled to some immunity from criminal prosecution for official acts, that principle does not preclude trial on this indictment. First, the specific form of criminal conduct charged here—efforts to subvert an election in violation of the term-of-office clause of Article II and the constitutional process for electing the President—does not justify any form of immunity. Second, the private conduct that the indictment alleges is sufficient to support the charges. Thus, even if liability could not be premised on official acts, the case should be remanded for trial, with the district court to make evidentiary and instructional rulings in accordance with this Court’s decision. Peetitioner could seek appellate review of those rulings, if necessary, following final judgment.

This case implicates two principles of paramount importance: the necessity of the effective functioning of the Presidency, and the equally compelling necessity of upholding the rule of law. Petitioner is charged with crimes that, if proved at trial, reflect “an unprecedented assault on the structure of our government.” J.A. 42. The effective functioning of the Presidency does not require that a former President be immune from accountability for these alleged violations of federal criminal law. To the contrary, a bedrock principle of our constitutional order is that no person is above the law— including the President. Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.


If petitioner were correct that the former President has permanent immunity from federal criminal prosecution except after his impeachment and Senate conviction—which has never happened—it would upset the separation of powers and usher in a regime that would have been anathema to the Framers. The Framers had experienced firsthand the dangers of a monarch who was above the law, and they adopted a system of checks and balances to avoid those dangers. They designed a Constitution that would ensure an effective and energetic President under Article II—but one who was accountable to justice under laws passed by Congress under Article I, enforced by the Executive Branch under Article II, and adjudicated by the courts under Article III. That careful design leaves no room for an implicit and previously unrecognized rule categorically immunizing the President from accountability for criminal conduct involving the misuse of his office.


The Framers’ most relevant writings provide no support for immunity of the type that petitioner claims. “James Wilson, a signer of the Constitution and futureJustice of this Court, explained to his fellow Pennsylvanians that ‘far from being above the laws, [the President] is amenable to them in his private character as acitizen, and in his public character by impeachment.’” Vance, 591 U.S. at 816-817 (Thomas, J., dissenting) (quoting 2 The Debates in the Several State Conventions on the Adoption of the Federal Constitution 480 (J. Elliot ed. 1891) (Debates on the Constitution)). Wilson therefore recognized that prosecution was the means of holding a President accountable in his “private character” for criminal acts, while impeachment was the means of addressing his “public character” as office holder. “James Iredell, another future Justice, observed in the North Carolina ratifying convention that ‘[i]f [the President] commits any crime, he is punishable by the laws of his country.’” Id. at 817 (Thomas, J., dissenting) (quoting 4 Debates on the Constitution 109). Alexander Hamilton likewise confirmed that a President, unlike a King, would be “liable to prosecution and punishment in the ordinary course of law.” The Federalist No. 65, at 442; see id. at No. 69, at 463; id. at No. 77, at 520-521 (noting that the President is “at all times liable to impeachment, trial, [and] dismission from office” as well as “forfeiture of life and estate by subsequent prosecution in the common course of law”).


 Petitioner contends (Br. 22) that the lack of any prosecutions of former Presidents until this case reflects the settled conclusion that criminal immunity precludes such a prosecution. But this prosecution is a historical first not because of any assumption about immunity but instead because of the singular gravity ofthe alleged conduct. The indictment describes petitioner’s efforts to “remain in power despite losing the 2020 election.” J.A. 42. The severity, range, and democracy-damaging nature of the alleged crimes are unique in American history. Other than former 41 President Nixon, whose pardon precluded criminal prosecution, petitioner can point to no former President alleged to have engaged in remotely similar conduct.