The special counsel pursuing federal criminal charges against Donald Trump for his efforts to overturn his 2020 election loss filed a U.S. Supreme Court brief on Monday urging the justices to reject the former president's bid for immunity from prosecution on the principle that "no person is above the law."
The case is due to be argued before the justices on April 25. Trump has appealed a lower court's rejection of his request to be shielded from the criminal case brought by Special Counsel Jack Smith because he was serving as president when he took the actions at the center of the case.
In his last filing before the arguments, Smith told the justices that Trump's actions that led to the charges, if he is convicted, would represent "an unprecedented assault on the structure of our government."
"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," Smith wrote. "To the contrary, a bedrock principle of our constitutional order is that no person is above the law including the president."
Trump, the first former president to be criminally prosecuted, is the Republican candidate challenging Democratic President Joe Biden in the Nov. 5 U.S. election. Biden defeated Trump in 2020. Trump has pleaded not guilty in this case and the three other criminal cases he faces, seeking to paint them as politically motivated.
He has argued that a former president has "absolute immunity from criminal prosecution for his official acts," and warned that without such immunity, "the threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial presidential decisions."
In August 2023, Smith brought four federal criminal counts against Trump in the election subversion case, including conspiring to defraud the United States, obstructing the congressional certification of Biden's electoral victory and conspiring to do so, and conspiring against right of Americans to vote.
Smith's view was backed on Monday by a group of 19 retired four-star U.S. military officers and other former high-ranking national security officials including retired Army Generals Peter Chiarelli and George Casey, former CIA Director Michael Hayden and former Navy Secretary Ray Mabus. In a friend-of-court brief, they called Trump's claim of presidential immunity "contrary to the foundational principles of our democracy."
"Unless (Trump's) theory is rejected, we risk jeopardizing America's standing as a guardian of democracy in the world and further feeding the spread of authoritarianism, thereby threatening the national security of the United States and democracies around the world," the former officials told the justices.
The Supreme Court's decision to hear arguments on Trump's immunity bid in late April postponed his trial, giving Trump a boost as he tries to delay prosecutions while running to regain the presidency.
Trump last October sought to have the charges dismissed based on his claim of immunity. U.S. District Judge Tanya Chutkan rejected that claim in December. On appeal, the U.S. Court of Appeals for the District of Columbia Circuit on Feb. 6 ruled 3-0 against Trump's claim.
Trump and his allies made false claims that the 2020 election was stolen and devised a plan to use false electors to thwart congressional certification of Biden's victory. Trump also sought to pressure then-Vice President Mike Pence not to allow certification to go forward. Trump's supporters attacked the U.S. Capitol on Jan. 6, 2021, in a bid to prevent the certification.
