Prominent Former DOJ Officials, U.S. Attorneys, Others Tell DC Appeals Court In Amicus Brief: Trump Is Not Immune From Prosecution
Sixteen 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, submitted an amicus brief Friday to the U.S. Court of Appeals for the District of Columbia in the case United States v. Donald J. Trump.
The brief, led by lead counsel Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr LLP, a former U.S. Solicitor General, supported the district court’s December 1 ruling that former President Trump’s extraordinary request that the court grant him absolute immunity from federal criminal prosecution for all official acts he took while President has no basis in constitutional text, structure, or history.
The amicus brief 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 16 amici submitting the brief include a former federal judge, senior Justice Department officials, a state Attorney General, the head of an enforcement agency, U.S. Attorneys, one of whom also served as a governor, and high-level executive branch staff.
The amici include: Bradford A. Berenson, Associate Counsel to the President in the George W. Bush Administration; Ty Cobb, Special Counsel to the President in the Trump Administration; George T. Conway III, attorney and principal author of the brief opposing immunity in Clinton v. Jones (1997); Philip Allen Lacovara, Deputy Solicitor General in the Nixon Administration and Counsel to the Watergate Special Prosecutor; Trevor Potter, former Chair of the FEC, appointed by President George H.W. Bush; Fern M. Smith, former U.S. District Court Judge, appointed by President Reagan; Olivia Troye, Special Advisor for Homeland Security and Counterterrorism to Vice President Pence; and William F. Weld, former Massachusetts Governor and U.S. Attorney in the Reagan Administration.
(See full list of amici here.)
On December 1, District Court Judge Tanya Chutkan ruled that former President Trump was not immune from prosecution in the election subversion case brought by Special Counsel Jack Smith in August. Former President Trump appealed the decision, which was expedited by the D.C Circuit Court of Appeals.
Smith separately requested the Supreme Court take direct jurisdiction over the appeal and bypass the Circuit Court of Appeals. On December 22, the Supreme Court declined Smith’s request, leaving the appeal in the D.C. Circuit Court.
On December 23, the Trump legal team filed a brief asking the Appeals Court to throw out the case, arguing that Trump is protected under presidential immunity.
Oral argument in the case is scheduled to be heard by the Appeals Court on January 9, 2024.
The amicus brief was prepared by Waxman, Todd C. Zubler, Colleen M. Campbell, Nathaniel W. Reisinger, David M. Levine, and Kyle T. Edwards, all of Wilmer Cutler Pickering Hale & Dorr LLP; Fred Wertheimer, President, Democracy 21 Education Fund; and Matthew A. Seligman, Stris & Maher LLP.
The amicus brief submitted today lays out in detail two core arguments:
1. The former President’s position cannot be squared with the Constitution’s text or history.
“As the district court correctly noted, ‘[t]here is no “Presidential Immunity” Clause’ in the Constitution. […] That omission is telling,” according to the brief.
“Far from barring the prosecution of former Presidents, the Constitution’s text explicitly contemplates such proceedings,” the brief continues. “[T]he Constitution does not confer any kind of immunity upon former Presidents for conduct that violates the criminal laws of the United States and instead contemplates that a former President might be prosecuted for crimes committed in office.”
The brief also 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.
As the brief states:
“Indeed, defendant himself acknowledged during his second impeachment trial that a former President is subject to criminal prosecution for allegedly official acts. His counsel made clear that ‘no former officeholder is immune’ from the criminal judicial process. […] Just as importantly, Senators voting for acquittal at defendant’s impeachment trial expressly relied on the continued availability of criminal prosecution for the President’s wrongful actions.”
In short, the brief continues, the immunity former President Trump seeks “would break with settled practice and tradition and contradict the positions defendant himself previously took regarding his exposure to criminal liability.”
On the other side of the scale, the brief states, “the public interest in the enforcement of federal criminal law far outweighs any perceived intrusion on the Executive Branch. […] It is difficult to imagine a weightier public interest in the exercise of jurisdiction than in the cases where defendant’s theory of immunity would apply: to charges that a former President took actions in his official capacity that violated criminal law — indeed that he acted to subvert the democratic transition of power the Constitution itself mandates.”
2. Even if former Presidents had some limited immunity against criminal prosecution, 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 re-election. 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 fundamental constitutional provisions.”
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.”
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, the brief states, “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. 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, tempered only by the off chance that his opposition might, for the first time in history, successfully impeach and convict him.
“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.”
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