It was no surprise that the U.S. Supreme Court turned down Special Counsel Jack Smith’s very unusual request to hear an appeal of a trial judge’s decision that Donald Trump does not enjoy presidential immunity for criminal acts committed during his term of office even before an appeals court ruled on the matter.
Smith asked that the Big Nine skip their normal practice and immediately take up D.C. Federal Judge Tanya Chutkan’s Dec. 1 order denying Trump protection from prosecution. While Trump wants Chutkan’s stinging decree overturned and the case will certainly end up before the Supremes, Trump is in no hurry, while Smith is nervously watching the calendar.
The March 4 start of Trump’s federal criminal trial for trying to steal the 2020 election is now in doubt while the appeals court accepts briefs in advance of their Jan. 9 oral argument before a three-judge panel.
Trump’s lawyers wrote in their papers filed last weekend that presidents enjoy immunity for their official acts while in office and that continues after they leave office. There’s some logic to that, as we wouldn’t want former presidents brought up on charges by their successors for their time in the Oval Office.
But what Trump’s lawyers fail to explain, and what we assume the appeals panel — and, soon enough, the Supreme Court justices — will rule is that Trump is being prosecuted for non-official acts.
Nowhere in the statute books of the United States Code or 234 years of precedent under the present Constitution does stealing an election fall under official acts.
Trump also argues that since he was impeached for the same actions (the Jan. 6 attack on the Capitol) by the House and acquitted by the Senate, a criminal trial now would be double jeopardy.
But it was exactly the opposite logic that some senators used to vote against conviction, that as a private citizen post-Jan. 20, he could face justice.
And Jack Smith is seeking justice.
We generally agree that a sitting president can’t be indicted. Trump had immunity from just about everything while he was in office, but once he left office, either through impeachment and removal or the end of his four-year term, he’s just a regular Donald, as liable to prosecution as anyone else who committed a felony.
The appeals judges will also have to dispense with Trump’s claim that he was engaged in his official duties, like signing or vetoing legislation or submitting nominations or issuing executive orders or otherwise carrying out the legal obligations and responsibilities of the highest office in the land.
Calling up Georgia’s secretary of state to have him find 11,780 more votes and pressuring Michigan election officials to not certify results and summoning a mob are not in any way official acts. Those are crimes, for which Trump must pay.
