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As Special Counsel Jack Smith pointed out in his argument to the court on Monday, “extraordinary” is a very appropriate word at this time. Mr. Smith’s filing neatly isolates Mr. Trump’s claims, but perhaps most important to the public’s understanding of the incident is its emphasis on the unusual nature of the situation.
It is worth noting that President Trump never claimed immunity from criminal prosecution like his post-presidential lawyers, even though he had the opportunity to do so. For example, in 2018, President Trump was criminally charged with attempting to obstruct Special Counsel Robert S. Mueller III’s investigation into Russian interference in the 2016 election, although he did not say he had immunity. declared that he had the right to pardon himself. At the time, his legal arguments centered on the idea that he could not interfere with investigations over which he had ultimate authority.
At one point in 2019, a lawyer representing President Trump argued that the president should be immune from prosecution even if he shot and killed someone on Fifth Avenue, as he mused on the campaign trail. he claimed. But it is rooted in a 2000 opinion from the Justice Department’s Office of General Counsel, which applies to sitting presidents, not former presidents. (“This is not permanent immunity,” his lawyer said at the time.) Then Trump became the first former president to face criminal prosecution, and here we are.
In his argument for the Supreme Court’s future consideration of this new claim, Smith formally outlines a variety of strong arguments against the idea that the president enjoys the claimed immunity. . For example, Trump’s position “frees the president from virtually all criminal law, including crimes such as bribery, murder, treason, and sedition,” which he said is an unacceptable situation. But Smith’s most important argument comes when he considers past scenarios in which presidents might have faced sanctions had they not enjoyed implicit immunity.
Mr. Smith’s filing states that Mr. Trump “argues that the lack of any prosecution of former presidents until this incident reflects the established conclusion that impunity precludes such prosecution. There it is written. “But this prosecution is a first in history, not because of any assumption of impunity, but because of the unique gravity of the alleged conduct.”
He noted that the focus was on Trump’s efforts to remain in power despite losing the 2020 election, which lower courts have called “the most fundamental challenge to executive power, the recognition and implementation of election results.” He explained that this was an attempt to “neutralize other checks”.
“The seriousness, scope and nature of the alleged crimes undermining democracy are unique in American history,” Smith continued.
This is probably not the most important legal argument. There is no doubt that it is the most important political issue.
Mr. Trump has insisted from the beginning that he faces criminal charges because of his politics, not his actions. He was helped both politically and rhetorically when his first indictment was handed down in a case considered by Americans to be the most questionable. The overwhelming majority of Republicans, and even most Americans, generally believe that the investigation is focused, at least in part, on blocking President Trump’s path back to the White House.
President Trump has benefited from a strong and persistent effort within the conservative media to downplay his actions or falsely equate them with those of President Biden. Many of his supporters, and indeed the American public at large, see politics in the investigation. Mr. Trump has benefited enormously from cynical and superficial assessments that such behavior is normal or within the realm of how politicians should or should respond to election losses. ing. Smith uses Trump’s efforts to compare himself to past presidents to differentiate Trump’s actions.
“The fact that the former president was not indicted until this incident does not reflect an understanding that the president is immune from criminal liability,” the filing reads elsewhere. “[I]Rather, it emphasizes its unprecedented nature. [Trump’s] Suspected conduct. ”
From the beginning, Trump has benefited from the idea that he is just like any other politician, but he may be making meaner, harsher statements than past presidents have publicly made. Reactions to his presidency and his actions from political insiders and outside observers have been pushed back as overreactions or biased, and President Trump is working hard to reinforce that view. It’s not that Trump is unusually concerned about democracy. It means that those in power are working harder to destroy him because he is a more serious threat to the status quo.
Mr. Smith’s filings confirm that this is not the case. Trump is an exception, and his actions after the 2020 election were exceptional. He is not a president facing attack because he is an outsider, but a maverick among chief executives who have sought to undermine the democratic transfer of power.
The rest of Mr. Smith’s filing makes effective points against Mr. Trump’s legal arguments regarding immunity. But his point about the exceptionality of President Trump’s actions is most important for the broader American public to understand.
Again, “the severity, scope, and damaging nature of the alleged crimes are unique in American history,” Smith’s filing states. Mr. Trump was indicted by a grand jury not because of politics, as usual, but because the exact opposite happened between November 2020 and January 2021.
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