by Jacob Fischler, Iowa Capital Dispatch
Accepting former President Donald Trump’s claim of presidential immunity would embolden future presidents to use military force to stay in office indefinitely, a group of anti-Trump Republican former officials warned in a Tuesday brief to the U.S. Supreme Court.
Rejecting Trump’s immunity claim, which he has said should protect him from prosecution on charges of lying to and encouraging supporters who turned violent on Jan. 6, 2021 and attacked the U.S. Capitol, is essential to preserve American democracy, the officials wrote in a friend-of-the-court brief.
The 26 former U.S. Department of Justice attorneys, lawmakers and others who authored the brief were elected Republicans or served in Republican administrations. They include former New Jersey Gov. Christine Todd Whitman, former U.S. Sen. John Danforth of Missouri and former U.S. Rep. Mickey Edwards of Oklahoma.
Trump, who is the front-runner for the Republican presidential nomination, asked the court Monday to further delay his trial in District of Columbia federal court as the justices consider his presidential immunity claim. Trump’s attorneys asked the justices to adopt a broad view of presidential immunity, which they said was critical for protecting the power of the office.
In Tuesday’s brief, the Republican officials said the implications of the former president’s argument present “terrifying possibilities.”
“Under former President Trump’s view of absolute immunity, future first-term Presidents would be encouraged to violate federal criminal statutes by employing the military and armed federal agents to remain in power,” they wrote.
“No Court should create a presidential immunity from federal criminal prosecution, even for official acts, that is so vast that it endangers the peaceful transfer of executive power that our Constitution mandates.”
While Trump argues that such a “lurid hypothetical” of a president using the military or armed federal agents should not prevent him from being granted immunity, the former Republican officials say the particular allegations against the former president weigh heavily against accepting his argument.
For one, they write, the federal indictment against Trump alleges he used the Department of Justice as a tool in his fake elector scheme.
Specifically, the amici point out, the indictment alleges that a letter signed by Trump’s acting attorney general pressured states to replace legitimate Biden electors with false ones supporting Trump.
“Under Mr. Trump’s vast rationale for federal criminal immunity, a future President would be emboldened to direct the Secretaries of Defense and Homeland Security, as well as the Attorney General, to deploy the military and armed federal agents to support efforts to overturn that President’s re-election loss,” they wrote.
The framers of the Constitution meant to limit executive power and highly valued a peaceful transfer of power, the officials wrote.
Alexander Hamilton wrote in a Federalist Papers entry that the Constitution meant to prevent a “victorious demagogue” from staying in power, they wrote. Accepting Trump’s broad interpretation of presidential immunity would threaten that protection and encourage future presidents to go to extreme lengths to stay in power, they said.
“What kind of Constitution would immunize and thereby embolden losing first-term Presidents to violate federal criminal statutes — through either official or unofficial acts — in efforts to usurp a second term?” they wrote. “Not our Constitution.”
Constitutional experts weigh in
In addition to the former Republican officials, several constitutional law experts filed an amicus brief Tuesday arguing that Trump is not immune from federal prosecution.
The six law professors argued that Trump’s dual claims that he is immune because his actions were taken while he was still president, and that he is protected from any criminal prosecution following his Senate impeachment trial acquittal, are a “misreading of constitutional text and history as well as this Court’s precedent.”
The absolute immunity argument “finds no support” in the Constitution, the experts wrote.
“Seeking to distinguish the president from a British King, the Constitution’s framers and ratifiers repeatedly indicated that a president ‘may be indicted and punished’ after ‘commit[ting] crimes against the state,’” the experts wrote, citing debates at several state conventions about the federal Constitution.
Like the former Republican officials, the professors of law and politics asked the Supreme Court to deny Trump’s request to further delay the trial court’s proceedings.
On Trump’s impeachment clause argument, the constitutional law experts wrote: “The framers viewed the impeachment process as entirely distinct from criminal prosecution and thus thought that a verdict against an officer in one proceeding should have no impact on the other.”
The brief’s authors include Frank O. Bowman III, of the University of Missouri School of Law, Michael J. Gerhardt, of the University of North Carolina School of Law, Brian C. Kalt of Michigan State University College of Law, Peter M. Shane, of the Ohio State University Moritz College of Law and New York University School of Law, Laurence H. Tribe, professor emeritus of Harvard University and Keith E. Whittington, professor of politics at Princeton University and forthcoming chaired professor of law at Yale Law School.
FEB. 20 DEADLINE
Also on Tuesday, Chief Justice John G. Roberts Jr. set a Feb. 20 deadline for Special Counsel Jack Smith, who is prosecuting the case for the Justice Department, to respond to Trump’s request for a stay in the trial.
The one-week deadline suggests the justices are seeking a speedy resolution to the issue.
Attorneys for Trump filed the request with the Supreme Court late Monday following a ruling last week from a three-judge panel on the D.C. Circuit Court of Appeals, comprising judges appointed by members of both parties, upholding a lower court’s decision to reject Trump’s immunity claim.
Trump’s stay request noted the former president would appeal the decision to the Supreme Court, as well as petition for a rehearing by the full D.C. Circuit. Trump asked that pretrial activity in the federal district court not proceed while those appeals are ongoing.
The immunity issue, which does not address the merits of the case Smith’s team has compiled against Trump, has gone on for months and delayed the scheduled March 4 trial date.
Trump made a pretrial motion to U.S. District Judge Tanya S. Chutkan in October seeking to throw out the four-count indictment based on his presidential immunity theory.
Chutkan denied the request, and Trump appealed her decision to the D.C. Circuit.
The Supreme Court also heard arguments last week in a case over whether Colorado could bar him from the presidential primary ballot because a provision in the Constitution’s 14th Amendment disallows insurrectionists from seeking office. The justices met Colorado’s argument with skepticism. A decision is expected soon.
Iowa Capital Dispatch is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Iowa Capital Dispatch maintains editorial independence. Contact Editor Kathie Obradovich for questions: info@iowacapitaldispatch.com. Follow Iowa Capital Dispatch on Facebook and Twitter.
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