Special counsel Jack Smith urges appeals court to reject Trump's claim of "presidential immunity"

Washington, D.C. — Special Counsel Jack Smith pressed his case that former President Donald Trump does not enjoy the protections of "presidential immunity" in the 2020 election conspiracy criminal case in an 82-page court document filed Saturday afternoon in D.C.'s federal court of appeals. 

Smith's filing comes one day after an appeals court allowed a lawsuit brought by a group of U.S. Capitol Police officers against Trump to move forward, ruling Trump is not entitled to absolute immunity from civil lawsuits. The suit focuses on Trump's alleged conduct surrounding the Jan. 6, 2021, assault on the U.S. Capitol.

Smith's latest filing comes ahead of scheduled oral arguments on the matter at the Appeals Court for the D.C. Circuit on Jan. 9, 2024. U.S. District Judge Tanya Chutkan, who is presiding over the case, ruled Trump cannot be shielded from federal prosecution for crimes allegedly committed while he was in the White House. 

Smith asked the Supreme Court to bypass the appellate court hearing the case– but his request was denied last week — a blow to the special counsel and his team of prosecutors.

Trump's attorneys argued that in asking the Supreme Court to fast-track the case and leap-frog the appeals court, the special counsel was urging the justices to "rush to decide the issues with reckless abandon."

Trump has pleaded not guilty to four charges related to an alleged scheme to thwart the peaceful transfer of presidential power after the 2020 presidential election. 

In his Saturday filing, Smith said, "Immunity from criminal prosecution would be particularly dangerous where, as here, the former President is alleged to have engaged in criminal conduct aimed at overturning the results of a presidential election."

He also warned that "presidential immunity" could shield a President who takes bribes or "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."

Smith's filing also argued, "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's part of an extended argument in Smith's filing which said the Senate's failure to convict Trump at the 2021 impeachment trial does not immunize the former president from prosecution.

— Melissa Quinn and Robert Legare contributed to this report. 

In:
• Donald Trump
• Jack Smith

Scott MacFarlane

Scott MacFarlane is a congressional correspondent. He has covered Washington for two decades, earning 20 Emmy and Edward R. Murrow awards. His reporting resulted directly in the passage of five new laws.

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