Jan. 6 investigator: Jack Smith "did not leave any stone unturned" in new Supreme Court filing

Special counsel's filing "preempted" possible SCOTUS delay in Trump election case, experts say

By Tatyana Tandanpolie

Staff Writer

Published April 9, 2024 4:17PM (EDT)

US President Donald Trump speaks at "Save America March" rally in Washington D.C., United States on January 06, 2021 | Special counsel Jack Smith (Photo illustration by Salon/Getty Images)
US President Donald Trump speaks at "Save America March" rally in Washington D.C., United States on January 06, 2021 | Special counsel Jack Smith (Photo illustration by Salon/Getty Images)

Special counsel Jack Smith urged the Supreme Court on Monday to reject former President Donald Trump's claim that he is immune from criminal prosecution in his federal election interference case. 

The 66-page filing was Smith's main submission in the case ahead of oral arguments later this month. In challenging Trump's immunity claim — that he is completely shielded from prosecution for any actions taken while in office — Smith argued that a president's "constitutional duty" to the execution of law does not "entail a general right to violate them," also noting later that the case's unprecedented nature highlights it's significance. 

“The absence of any prosecutions of former presidents until this case does not reflect the understanding that presidents are immune from criminal liability,” Smith wrote, according to The New York Times. “It instead underscores the unprecedented nature of petitioner’s alleged conduct.”

The special counsel also called on the Supreme Court to move quickly in administering their decision, imploring the justices to keep focus on the basic legal principles underlying the immunity question.

“A bedrock principle of our constitutional order,” he wrote, “is that no person is above the law — including the president.” He added: “The Constitution does not give a president the power to conspire to defraud the United States in the certification of presidential-election results, obstruct proceedings for doing so or deprive voters of the effect of their votes.”

Smith's filing was "strong and straightforward," University of Texas law professor Lee Kovarsky told Salon, noting that the "bottom line" of the prosecutor's argument is that "in order to immunize Trump's malfeasance, Trump needs to convince the court to adopt an immunity of breathtaking scope."

"Smith really did not leave any stone unturned, and he took on every one of Trump's arguments and, I think, also preempted various positions that the conservative wing of the court might be inclined to consider," added Temidayo Aganga-Williams, a partner at Selendy-Gay PLLC and former senior investigative counsel for the House Jan. 6 committee. 

The presidential immunity case is just one of three pertaining to the former president and the charges against him on the Supreme Court's docket, the Times notes. The justices last month denied a challenge to Trump's eligibility to hold office, and next week they will hear arguments about the scope of the obstruction charges against him in the federal election interference case. 

In agreeing to hear the case, the Supreme Court said it would decide on "whether and if so to what extent does a former president enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”

The way the court's question was presented sparked close scrutiny because, while it seems to ignore Trump's argument that his acquittal by Congress, over charges in his second impeachment trial alleging he incited an insurrection on Jan. 6, blocked any prosecution on similar counts, it also leaves open the possibility that the court could parse through — or ask lower courts to examine — which acts constitute official acts or private acts. 

Former federal prosecutor Neama Rahmani told Salon that, based on the question presented, he expects the Supreme Court to analyze the immunity question "under the traditional principles" of that distinction, a legal issue the justice system does not have much precedent for. However, based on the 1974 U.S. v. Nixon decision, in which the court rejected then-President Richard Nixon's claims of executive privilege, "it's pretty clear that official acts are covered by executive immunity, and private ones are not," he explained, asserting that "campaigning" and "trying to remain in power" do not amount to official acts. 

"If the justices stick with the official and private acts analysis, then the question is: Are they going to rule that Jan. 6, was purely private, in which case the stay will be lifted and the trials in D.C. and elsewhere can begin, or will they send it back to the lower court to do that analysis? In which case, [there's] just additional delay," Rahmani said. 

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The lower courts have flatly rejected Trump's absolute immunity claim. U.S. District Judge Tanya Chutkan, who is overseeing the case, in her December 2023 decision on the absolute immunity question, wrote, "Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.” A unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld that ruling earlier this year.

The Supreme Court set an expedited schedule for a decision in February when it decided to hear the case. With oral arguments scheduled for April 25, around seven weeks after the justice's acceptance, Trump scored a partial victory in the delay that timeline added to the trial, which was slated for March 4.

Aganga-Williams told Salon that during oral arguments he will be looking for whether the Supreme Court will decide to send the case back to Chutkan for "further factual findings as it relates to immunity." Smith, in Monday's filing, preempts that argument, he notes, explaining that Smith urged the Supreme Court to, should they decide to remand the case, do so "for trial because Trump has private conduct that is independently a sufficient basis for the trial to go forward."

Most legal experts expect Smith to ultimately win the immunity argument, Aganga-Williams added, emphasizing that the question is really a matter of "how and when."

Brookings senior fellow Norman Eisen agreed, telling Salon that he's "confident" the Supreme Court will reject Trump's position, with the possibility of the ruling coming down to a "7-2" or "6-3" outcome in Smith's favor. Of most importance, he added, is that the court "must stop the stall."

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The justices, he explained, are, so far, moving at a "much slower pace" than they did when deciding on the ballot eligibility issue and "certainly slower" than in U.S. v. Nixon or "truly fast cases" like Bush v. Gore.

"The other question will be: what is the limiting principle? And the answer to that is: decide this case," Eisen added. "You don't need to decide other cases that are not before you that might present more complex situations. This case is not complicated."

If the high court follows the pace of the ballot eligibility case and rules on the matter in May, the Washington, D.C. trial could begin toward the end of the summer and possibly conclude before the election, Eisen said. 

But if the court issues a ruling in late June or returns the case to lower courts for further consideration on partial immunity, the trial would likely begin after the 2024 presidential contest, the Times notes. Should Trump win, the Justice Department could drop the case, if not because of its policy against prosecuting a sitting president, because Trump, as president, could order the department to nix the charges.

"I think voters have a right to some answers about whether Donald Trump, having allegedly interfered with an election and deceived voters to grasp power, should be entitled to obtain the identical office where he can do that again," Eisen said. 

By Tatyana Tandanpolie

Tatyana Tandanpolie is a staff writer at Salon. Born and raised in central Ohio, she moved to New York City in 2018 to pursue degrees in Journalism and Africana Studies at New York University. She is currently based in her home state and has previously written for local Columbus publications, including Columbus Monthly, CityScene Magazine and The Columbus Dispatch.

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