Prominent Former DOJ Officials, U.S. Attorneys, Others Submit Amicus Brief Urging SCOTUS To Reject Trump’s Request For Immunity From Prosecution
In an amicus brief filed Monday with the Supreme Court, 13 former prosecutors, elected officials, other government officials, and constitutional lawyers, including individuals appointed in the Nixon, Reagan, George H.W. Bush, George W. Bush, and Trump Administrations, urged the Supreme Court to reject former President Donald Trump’s request to be granted immunity from federal criminal prosecution for all official acts he took while President.
This amicus brief, submitted in the case Donald J. Trump v. United States, explains in detail why the immunity sought by former President Trump “is inconsistent with our Constitution and would subvert the bedrock principle that no person is above the law.”
The brief urges the Supreme Court to affirm the decision of the Court of Appeals for the D.C. Circuit which upheld the ruling by District Court Judge Tanya Chutkan who is overseeing the January 6 prosecution of Trump.
The brief states that former President Trump’s request that he be granted absolute immunity from federal criminal prosecution for all official acts he took while President has no basis in constitutional text, structure, or history.
The preparation of the brief was led by Seth Waxman of WilmerHale, a former U.S. Solicitor General. In addition to Waxman, the amicus brief was prepared by Todd C. Zubler, Colleen M. Campbell, Nathaniel W. Reisinger, and David M. Levine, all of WilmerHale; Fred Wertheimer, President, Democracy 21 Education Fund; and Matthew A. Seligman of Stris & Maher LLP.
The 13 amici submitting the brief include individuals who have served in the past as: a federal judge; senior Justice Department officials; a state Attorney General; U.S. Attorneys, one of whom also served as a governor; Members of Congress; and high-level executive branch staff.
The amici have collectively spent decades defending the Constitution, the interests of the American people, and the rule of law.
(See the full list of amici here.)
The Supreme Court has scheduled oral argument in the case for April 25.
The amicus brief emphasizes that there is “an urgent national need for prompt and definitive refutation of [Trump’s] dangerous proposition: that, even taking the acts alleged in the indictment as true, he is immune from prosecution. Defendant may or may not be guilty of these charged offenses. But with defendant seeking reelection, it is fundamental to the integrity of our democratic processes that the Nation have the answer.”
Wertheimer has noted that the Supreme Court issued an opinion favorable to Trump on March 4, just 25 days after oral argument in Trump v. Anderson, the Colorado case that left Trump on the presidential primary ballot.
“There is no basis for the Court to take a different approach in this case,” Wertheimer said. “The Court should, as they did in the Colorado case last month, issue its opinion no more than 25 days after the April 25 oral argument – by May 20. For the Court to wait to issue its decision until June, would delay the trial and seriously jeopardize the ability of citizens to know before they voted whether Trump is found guilty in this criminal case.”
The amicus brief submitted today lays out in detail two core arguments:
1. The Constitution does not endow former Presidents with immunity from criminal prosecution.
Former President Trump’s “claimed immunity finds no support in the Constitution’s text or historical practice,” according to the brief. “Nor can it remotely be squared with separation-of-powers principles made explicit in the Executive Vesting Clause and inherent in the structure of the Constitution; to the contrary, it subverts them.”
As the brief explains in detail:
⮞ No constitutional provision immunizes former Presidents from criminal responsibility. Instead, the Constitution’s text explicitly contemplates such proceedings.
⮞ History and settled practice confirm that former Presidents are not immune from federal criminal prosecution, even for official acts.
The brief lays out how former Presidents have recognized their and their predecessors’ vulnerability to prosecution – from Presidents Ulysses S. Grant to Richard Nixon to Bill Clinton to Donald Trump himself.
⮞ Extending criminal immunity to former Presidents would subvert the separation of powers and undermine the public interest.
⮞ Granting former Presidents immunity would intrude on the Executive Branch’s authority.
⮞ The public interest overwhelmingly outweighs any purported intrusion on the Executive Branch.
“Affording former Presidents virtual impunity for even the most egregious misconduct would controvert a fundamental norm of our constitutional scheme: that ‘[n]o man in this country is so high that he is above the law.’” (United States v. Lee, 1882)
⮞ The separation of powers protects the President’s proper constitutional role.
“The constitutional separation of powers and the procedural safeguards inherent in criminal prosecutions adequately protect the President’s proper constitutional role without need for the invented immunity [Trump] proposes.” Rejecting his absolute immunity argument “would leave former Presidents with powerful tools to protect against malicious or bad faith prosecutions that threaten the constitutional role of the Presidency.”
2. Even if former Presidents had some limited immunity against criminal prosecution for certain official acts, it could not conceivably reach the acts alleged here.
According to the brief: “Even if one could hypothesize a circumstance in which immunity for a former President might be warranted, no tenable formulation of immunity could reach defendant’s machinations alleged here. The indictment alleges that defendant in many instances acted as a private candidate for reelection. Even defendant’s own theory provides no immunity over such activities. Further, defendant allegedly acted to thwart the peaceful transfer of power that the Constitution demands. Any immunity that would shield those acts would contravene a bedrock of the Constitution.”
Former President Trump’s alleged fake elector scheme following the 2020 presidential election represents, the brief states, “a transgression of the separation of powers and a breach of our republican form of government that would have outraged the Founders.”
Former President Trump’s alleged scheme, the brief continues, “is a frontal assault on the Constitution’s Executive Vesting Clause.”
The brief continues: “To allow a President who has failed to win reelection to leverage his existing power to prevent the constitutionally required vesting of executive power in his successor would endanger one of the most fundamental operations of the Constitution – the peaceful transfer of executive power at the end of a President’s term. It also would eviscerate one of the primary constitutional checks against presidential misconduct – potential defeat at the ballot box.
“Indeed, granting a former President the immunity defendant seeks here would create a perverse incentive for sitting Presidents to engage in misconduct in order to stay in power illegally. […] A President could override the electoral will of the nation and maintain control of the government with near impunity, knowing that a mere 34 allies in the Senate would immunize him from removal and any other punishment, and thereby allow him to remain in power indefinitely in defiance of any electoral results. […]
“This Court should reject any theory of presidential immunity that would endanger the operation of the Executive Vesting Clause, which has preserved the stability of our Nation for over 200 years.”
