May 21, 2024
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I always thought that our Revolutionary War fight against the British was, at heart, because we didn’t want to have a king ruling over us. As Trump’s first criminal trial looms for next week (April 15) which he is desperately trying to stop, and because the US Supreme Court is set for April 25, what are the documents regarding immunity?

Jack Smith’s brief to Scotus. PDF part of this, bolding is mine

Even assuming that a former President is entitled
to some immunity for official acts, that immunity
should not be held to bar this prosecution. First, a
President’s alleged criminal scheme to overturn an elec-
tion and thwart the peaceful transfer of power to his
lawfully elected successor is the paradigmatic example
of conduct that should not be immunized, even if other
conduct should be.
Second, at the core of the charged
conspiracies is a private scheme with private actors to
achieve a private end: petitioner’s effort to remain in
power by fraud. Those allegations of private miscon-
duct are more than sufficient to support the indictment.

Thus, even if the Court determines that some form of
official-act immunity exists and may apply to some acts
alleged in this case, the Court should remand so the

district court can address the issues through eviden-
tiary and instructional rulings at trial.

A. No Form Of Official Immunity Should Preclude Trial
On The Indictment In This Case
This case should be remanded for trial because any
novel immunity from criminal liability for a former
President’s official acts should not apply to the allega-
tions in this case. A President’s alleged criminal scheme
to use his official powers to overturn the presidential
election and thwart the peaceful transfer of power frus-
trates core constitutional provisions that protect de-
mocracy. See J.A. 40-43. These provisions include the
term-of-office clause, see U.S. Const. Art. II, § 1, Cl. 1;
the provision for electing Presidents, see id. Art. II,
§ 1, Cl. 2; and the installation-of-successor provision in
the 20th Amendment. Petitioner’s concern about
chilling official conduct that violates those provisions
rings hollow because no President has an Article II in-
terest in using crimes to give himself a second term af-
ter an election he lost. Nor would it be a “gerryman-
dered approach,” Pet. Br. 47, to focus on the specific al-
legations that petitioner conspired with others “to over-
turn the legitimate results of the 2020 presidential elec-
tion by using knowingly false claims of election fraud,”
J.A. 183. To the contrary, a holding that petitioner has
no immunity from the alleged crimes would suffice to
resolve this case,
leaving potentially more difficult
questions that might arise on different facts for decision
if they are ever presented. See Ashwander v. TVA, 297
U.S. 288, 347 (1936) (Brandeis, J., concurring) (describ-
ing as a hallmark principle of judicial restraint that
“[t]he Court will not formulate a rule of constitutional
law broader than is required by the precise facts to

which it is to be applied”) (citation and internal quota-
tion marks omitted).
B. Any Remand Should Permit The District Court To Make
Evidentiary And Instructional Rulings At Trial
Even if the Court were inclined to recognize some im-
munity for a former President’s official acts, it should re-
mand for trial because the indictment alleges substan-
tial private conduct in service of petitioner’s private
aim. The district court can make evidentiary rulings
and craft appropriate jury instructions for trial clarify-
ing that petitioner may be held criminally liable based
only on the private conduct alleged in the indictment,
even though the jury could consider official-acts evi-
dence for limited and specified purposes.

  1. Petitioner’s use of official power was merely an ad-
    ditional means of achieving a private aim—to perpetuate
    his term in office—that is prosecutable based on private
    conduct. The conspiracy centrally embraced private ac-
    tors agreeing with petitioner to achieve his private end
    through private means. In particular, petitioner is alleged
    to have conspired with four private attorneys and a pri-
    vate political consultant in his effort, as a candidate, to
    subvert the election results. For example:
    • Petitioner turned to a private attorney who “was
    willing to spread knowingly false claims” of elec-
    tion fraud to spearhead his challenges to the elec-
    tion results. J.A. 183, 192-193.
    • Petitioner conspired with another private attor-
    ney who caused the filing in court of a “verifica-
    tion” signed by petitioner that contained false al-
    legations to support a challenge. J.A. 183, 199-

• Three private actors—two attorneys (including
one mentioned above) and a political consultant—
helped implement a plan to submit fraudulent
slates of presidential electors to obstruct the cer-
tification proceeding, and petitioner and a co-con-
spirator attorney directed that effort. J.A. 184,
That alleged conduct falls well outside of any conception
of presidential official acts.

Petitioner confirmed that he acted in a private capacity
by seeking First Amendment protection for his false
speech and moving to dismiss the entire indictment on
that basis. D. Ct. Doc. Nos. 113, at 4-18 and 114, at 16-17
(Oct. 23, 2023), 162, at 1-10 (Nov. 22, 2023)); see Manhat-
tan Community Access Corp. v. Halleck, 587 U.S. 802, 804
(2019) (“The Free Speech Clause of the First Amendment
constrains governmental actors and protects private ac-
tors.”); Garcetti v. Ceballos, 547 U.S. 410, 424 (2006) (em-
ployee speech for the government has no First Amend-
ment protection). The district court correctly held that
petitioner’s false speech in furtherance of the charged
conspiracies is not constitutionally protected, J.A. 101-
110, but petitioner’s assertion of private First Amend-
ment rights speaks volumes about the private character
of the charged offenses.
That petitioner also engaged in official conduct that
was intertwined with his private means of attaining the
conspiracy’s aim, see J.A. 215-220, should not immunize
all of his conduct. No valid claim of blanket immunity
should attach to a non-immune conspiracy committed
with private actors through private conduct to obtain a
private end simply because a former President also used
official powers to further the conspiracy. See Haldeman,
559 F.2d at 122 (noting that the Watergate defendants

were charged with a conspiracy to defraud the United
States, “not * * * with a crime of misusing the CIA”; the
proof of “misusing the CIA” served to illustrate “a means
of accomplishing the crime of defrauding the Govern-

  1. If the Court were to find that some form of immun-
    ity from criminal prosecution for a former President’s of-
    ficial acts exists, that immunity should not preclude all ev-
    identiary uses of official acts in a trial based on peti-
    tioner’s purely private conduct. His interactions with gov-
    ernment officials or actions in his official capacity would
    still be admissible to prove, for example, petitioner’s
    knowledge or notice of the falsity of his election-fraud
    claims. E.g. J.A. 109, 206, 207, 216 (DOJ officials telling
    petitioner that his election-fraud claims were false). That
    evidentiary use parallels the established rule in compara-
    ble contexts. For instance, the First Amendment prohib-
    its criminalizing most speech or other protected expres-
    sion but it “does not prohibit the evidentiary use of
    speech,” including “to prove motive or intent.” Wisconsin
    v. Mitchell, 508 U.S. 476, 489 (1993); see also Dowling v.
    United States, 493 U.S. 342, 348 (1990) (declining to ex-
    clude “relevant and probative evidence” under the Double
    Jeopardy Clause “simply because it relates to alleged
    criminal conduct for which a defendant has been acquit-
    ted”). Through evidentiary rulings and instructions to the
    jury, the district court can make clear that evidence con-
    cerning any protected official acts “is to be considered
    only for the proper purpose for which it was admitted.”
    Huddleston v. United States, 485 U.S. 681, 691-692 (1988).
    And if petitioner objects to such rulings, he can seek ap-
    pellate review, if necessary, after final judgment. Cf.
    United States v. Rostenkowski, 59 F.3d 1291, 1300 (D.C.
    Cir. 1995) (former member of Congress could appeal

evidentiary or instructional rulings based on congres-
sional privilege after final judgment).
The judgment of the court of appeals should be af-
firmed. Consistent with the Court’s expedited treat-
ment of this case, the government respectfully requests
that the Court issue the opinion and a certified copy of
the judgment forthwith. Cf. Nixon, 418 U.S. at 716.
Respectfully submitted.”

Also, from Esquire- Jack Smith to Trump’s Immunity Claim: No, Man, You Can’t Just Do Crimes

On April 25, the court will hear oral arguments concerning the former president*’s contention that he is immune from prosecution for any action, no matter how criminal, that he may have taken during his four-year vandalism spree in the executive branch. Smith demolished this ridiculous contention with one line in his latest finding.

The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.

That is the whole megillah right there in one simple, declarative sentence.

Petitioner contends 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 of the alleged conduct. The indictment describes petitioner’s efforts to “remain in power despite losing the 2020 election.” The severity, range, and democracy-damaging nature of the alleged crimes are unique in American history. Other than former President Nixon, whose pardon precluded criminal prosecution, petitioner can point to no former President alleged to have engaged in remotely similar conduct.

Even assuming that a former President is entitled to some immunity for official acts, that immunity should not be held to bar this prosecution. First, a President’s alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his lawfully elected successor is the paradigmatic example of conduct that should not be immunized, even if other conduct should be. Second, at the core of the charged conspiracies is a private scheme with private actors to achieve a private end: petitioner’s effort to remain in power by fraud.

Trump immunity demand seeks to turn president into a king, allow him ‘to transform a government of laws into a fiefdom for himself,’ ACLU argues

Amicus Brief of 15 national security and millitary experts PDF

Petitioner argues that as former President of
the United States, he is immune to all criminal
charges, even after leaving office. Brief of Petitioner
President Donald J. Trump at 10, United States v.
Trump, 91 F.4th 1173 (D.C. Cir. 2024) (No.23-3228),
cert. granted, No. 23-939 (U.S. Feb. 28, 2024) (“Brief
of Petitioner”). He asks this Court to embrace a theory
of presidential authority, according to which no
prosecutor or court can hold a former president
accountable for either private or official capacity
crimes committed while he is in office, and he claims
this blanket immunity should endure permanently,
including after a president has left office. As national

security professionals and military experts, amici
argue that Petitioner’s broad view of immunity would
imperil U.S. national security, weaken the authority
of the President, and throw confusion into the chain of
command of the armed forces, which the President, as
Commander-in-Chief, commands. This Court must
unequivocally reject the proposed doctrine of
presidential immunity and leave no doubt in the
minds of Petitioner, the public, and all future
occupants of the Oval Office that the President, like
all individuals subject to the reach of the U.S. legal
system, is not above the law.
Of particular concern is the potential adverse
impact of presidential immunity on the principle of
military obedience to civil authority, the foundation
for our civil-military relations since the inception of
the Republic. Allowing a president to issue orders
requiring subordinates to commit criminal acts or
omissions would wreak havoc on the military chain of
command and result in an erosion of confidence in the
legality of presidential orders. It would also create the
potential for disparate interpretations of the duty to
obey orders, thereby risking military discipline. While
the duty of obedience does not extend to patently
illegal orders, an order issued by the President himself
would exert a powerful gravitational pull and thus
even if of dubious legality would create uncertainty in
the ranks. Holding everyone in the chain of command,
including the President, to the same principles of
accountability under the criminal laws of the United
States is essential for assuring the legality of military
orders and for providing the reassurance for all levels
of the chain of command of that legality

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