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America’s Future SCOTUS Brief Supports Donald Trump’s Claim of Presidential Immunity

Supreme Court columns

On Tuesday, March 19, 2024 , America’s Future filed an Amicus brief in the Supreme Court of the United States (SCOTUS) in Donald J. Trump v United States, et al., Dkt. No. 23-939.  The public docket in this case is here. Oral argument is scheduled to take place on Thursday, April 25, 2024.  Arguments are livestreamed and and, thereafter, the audio recording will be available here.

In this case, the following question has been  presented to the Court by former President Donald Trump: 

Whether, and if so, to what extent does a former U.S. President enjoy Presidential immunity from criminal prosecution for conduct alleged to involve Official Acts during his tenure as President?

Never before has the court been asked to address this question and with good reason.  No Justice Department in the history of the United States has been so brazenly corrupt and emboldened as to bring criminal charges against a former president for actions taken during his presidency.  Special Counsel Jack Smith, who waited until after President Trump announced his 2024 candidacy for President, contends Congressional impeachment and conviction are meaningless and Presidential immunity has no teeth and is merely akin to equitable tolling of a statute. Common sense and our constitutional framework must dictate otherwise.

Our brief supports former President Trump, and is consistent with the Constitution, common sense and reason. It makes clear, throughout, that fundamental Constitutional principles like Separation of Powers, Speech & Debate Clause, and Ordered Liberty compel the High Court to decide the matter in full favor of the former President, currently the leading presidential republican nominee.

As our brief points out and plainly explains, Article I Section 3 prescribes the singular avenue for a valid criminal indictment of a President.  It’s where the rubber hits the road.  And try as they might, their lawfare attacks are fatally flawed and untethered to the Constitution, common sense, and reality. 

Since the Constitution specifies that a President who is convicted in an impeachment trial is “subject to” criminal prosecution, that strongly suggests that a President who is acquitted is not. Those who hoped that a conviction at Trump’s second impeachment trial for activities primarily relating to January 6, 2021 would open the door to criminal prosecution of Trump were disappointed as that effort failed.

As further explained in our brief,

The Constitution implies that criminal charges can only follow House impeachment and Senate conviction. Presidential immunity does not put the President “above the law” any more than the “Speech and Debate clause, which confers criminal immunity, puts Congress “above the law.”

As Chief Justice Marshall made clear, a President is vested with discretion, and “is accountable only to his country in his political character, and to his own conscience.” Failure to provide Presidential immunity will transfer electoral power from voters to lawyers, juries, and judges, gravely damaging public belief in the rule of law. Tyrants abuse their power to clear the field of political opponents, but this Court must not allow America to become that kind of nation.

The recent analysis in Trump v Anderson is, too, foretelling.  We are reminded how fragile our freedoms are, and how quickly America can devolve into a banana republic if the High Court does not end the war waged against Trump and his supporters and the malicious interference with our elections, forthwith, stating,

All opinions for or against President Trump aside, the question presented is much larger than one President. This a perfect case to employ the “shoe on the other foot” test, as exactly that may happen not too far in the future. The best way for this Court to address this issue would be as it recently did in Trump v. Anderson — unanimously— which these amici respectfully request this Court again to do.

Our brief  goes to the heart of the matter; it is robust with facts for the SCOTUS to consider illustrating selective prosecution, political persecution and an unlawful abuse of power glaring in Jack Smith’s indictment against Trump.

The facts of the matter all belie Jack Smith’s bogus indictment against Trump, convincingly.  One of many factual examples we urge the SCOTUS to ponder is about then Vice President Pence.  As our brief states, 

The Indictment portrays Pence as a weak man, bereft of legal counsel, whom Trump was coercing to do what Pence believed to be wrong. None of these impressions are true.

Pence was the second highest ranking person in the United States Government. Pence had official legal counsel, Gregory Jacob, who the prior month advised him that there was sound legal and historical authority for him to decide electoral disputes — a power which he chose not to exercise.

And on January 6, Pence stated that there had been both election fraud and judicially changed election laws altering the election outcome.

We, at America’s Future, urge the SCOTUS to unanimously rebuke the notion that Presidential immunity is without teeth and without meaning.  Certainly the Framers knew better.  This is not the America we have known.  This chaos and lawlessness must stop for our nation to survive.  Every child learns from a young age that one day he or she can become President.  Here is to hoping those are not just the good ole days.

Editor’s Note: To read all of our Amicus briefs, please visit our Law & Policy page.

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