DOJ To Supreme Court: No, Trump’s Coup Attempt Is Not Immune From Prosecution

If the high court agrees with the trial court and a federal appellate court, Trump could face trial on the federal charges before the November election.
Protesters gather on the second day of pro-Trump events fueled by former President Donald Trump's continued claims of election fraud in an attempt to overturn the results before Congress finalizes them in a joint session on Jan. 6, 2021, in Washington, D.C.
Protesters gather on the second day of pro-Trump events fueled by former President Donald Trump's continued claims of election fraud in an attempt to overturn the results before Congress finalizes them in a joint session on Jan. 6, 2021, in Washington, D.C.
Kent Nishimura/Los Angeles Times via Getty Images

WASHINGTON ― Federal prosecutors Monday urged the nation’s high court to reject Donald Trump’s claim that he is immune from prosecution for his coup attempt because it was done while he was president.

“The Constitution does not give a president the power to conspire to defraud the United States in the certification of presidential-election results, obstruct proceedings for doing so, or deprive voters of the effect of their votes,” Special Counsel Jack Smith wrote in a 66-page brief that blistered Trump’s claims that he was merely doing his presidential duties on Jan. 6, 2021.

“The severity, range, and democracy-damaging nature of the alleged crimes are unique in American history. Other than former President Nixon, whose pardon precluded criminal prosecution, petitioner can point to no former president alleged to have engaged in remotely similar conduct,” Smith wrote.

Smith’s argument has previously carried the day both before trial judge Tanya Chutkan and a three-judge panel of the Court of Appeals for the District of Columbia Circuit.

If the Supreme Court agrees that Trump is criminally liable for his actions leading up to and on Jan. 6, 2021, Trump could go trial on those charges before the November election, in which Trump is again the presumptive Republican Party nominee.

Trump stands charged with conspiring to defraud the United States, conspiring to obstruct an official proceeding, obstructing an official proceeding, and conspiring to deprive millions of Americans of the right to have their votes counted. The four-count indictment lays out how Trump’s repeated lies about the 2020 election having been “stolen” from him and the assault on the Capitol by a mob of his followers were a part of his scheme to remain in office.

More than 140 police officers were injured on that day, some severely. One died hours later and four others took their own lives in the weeks to come.

Trump at first publicly disavowed the violence, but in recent months has come around to glorify as heroes those who have been charged and even convicted of assaulting police. At rallies, he has played a recording of a group of them singing the national anthem, interspersed with his reading of the pledge of allegiance, while he stands and salutes.

Of the 20 Jan. 6 detainees in the District of Columbia jail on the day of the recording, 17 were charged or had been convicted of assaulting police officers. The other three were charged with seditious conspiracy ― of literally trying to overthrow the government.

Trump’s lawyers in their March 19 filing with the Supreme Court repeated arguments they had previously tried without success in the lower courts. They claimed that the lack of any previous prosecutions against former presidents is proof that Trump should not be prosecuted, while warning that should cases against Trump be permitted to proceed, all future presidents would also be prosecuted as a form of harassment.

Smith and three of his Department of Justice deputies, though, ridiculed those arguments, pointing out that safeguards already exist to protect former presidents from frivolous prosecutions, and that Trump could not identify a single crime committed by George W. Bush, Bill Clinton, Barack Obama or current President Joe Biden.

Smith also noted that Trump’s contention that prosecutions should only be permitted against former presidents for a crime when a statute specifically stated that presidents are included in their reach ― only two such laws exist ― is absurd.

It is implausible that Congress intended for the president to face criminal sanctions for influencing private employment or accepting campaign contributions in federal buildings, while exempting him from every other federal criminal statute, including those barring bribery, murder, treason, and seditious conspiracy,” Smith wrote.

In addition to the federal charges based on his coup attempt, Trump is facing a Georgia state prosecution for his efforts to overturn his election loss in that state.

A second federal prosecution is based on his refusal to turn over secret documents he took with him to his South Florida country club when he left the White House, while a New York state indictment charges him with falsifying business records to hide hush money payments in the days leading up to the 2016 election.

That case is set to begin jury selection in Manhattan on April 15.

And in a separate civil case, a New York jury last year found Trump liable for sexually abusing writer E. Jean Carroll against her will in an incident in the 1990s. The federal judge in the case later clarified that Trump’s actions constituted rape in the “common modern parlance.”

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