“Extraordinary” is absolutely the right word at the moment, as special counsel Jack Smith pointed out in the argument he filed with the court Monday. Smith’s filing breaks down Trump’s argument perfectly, but perhaps most important to the public’s understanding of the case is its emphasis on the extraordinary nature of the situation.
It should be noted that, as president, Trump never claimed he had immunity from criminal prosecution as his post-presidency lawyers do, although he had the option to do so. In 2018, for example, Trump said not that he was immune but that he had the right to grant himself a pardon if he faced criminal charges for trying to obstruct the special prosecutor’s investigation Robert S. Mueller III on Russian interference in the 2016 election. At the time, his legal argument centered on the idea that he could not obstruct an investigation over which he had ultimate authority.
At one point in 2019, a lawyer representing Trump argued that the president should be shielded from prosecution even if he were to — as Trump once mused on the campaign trail — shoot someone dead. Fifth Avenue. But that builds on a 2000 opinion from the Justice Department’s Office of Legal Counsel that applied to sitting presidents, not former ones. (“This is not permanent immunity,” his lawyer said at the time.) Then Trump became a former president facing criminal prosecution, and here we are.
In his argument for the Supreme Court’s upcoming consideration of this emerging contention, Smith duly lays out various strong arguments against the idea that presidents enjoy claimed immunity. He notes, for example, that Trump’s position “would free the president from virtually all criminal law — even crimes such as bribery, murder, treason and sedition,” an untenable situation. But it is by considering past scenarios in which presidents might have been subject to sanctions if they had not enjoyed tacit immunity that Smith’s most important argument emerges.
Trump “maintains that the lack of prosecution of former presidents until this case reflects the established conclusion that criminal immunity precludes such prosecutions,” Smith’s filing says. “But these prosecutions represent a historic first, not because of any assumption regarding immunity, but rather because of the singular gravity of the alleged conduct. »
It notes that the focus is on Trump’s efforts to retain power despite his defeat in the 2020 election, which a lower court described as an attempt to “neutralize the most fundamental check on executive power: recognition and implementation of election results.”
“The severity, scale, and democratically damaging nature of the alleged crimes,” Smith continued, “are unique in American history.”
This may not be the most important legal argument. This is arguably the most important political issue.
From the start, Trump claimed he was facing criminal charges not because of his actions but because of his policies. He was helped, politically and rhetorically, when the first indictment handed down concerned a matter considered by Americans to be the most dubious. The vast majority of Republicans, and even most Americans, believe the investigations are at least partly aimed at blocking Trump’s return to the White House.
Trump has benefited from a robust and unrelenting effort within the conservative media to downplay his actions or draw a false equivalence with the actions of President Biden. Many of his supporters and, again, Americans in general, see politics playing a role in the investigations. Trump benefits enormously from cynical and superficial assessments that such behavior is normal or falls within the bounds of how politicians could or should respond to electoral defeat. Smith uses Trump’s efforts to compare himself to past presidents to differentiate Trump’s behavior.
“The lack of prosecutions of former presidents until this case does not reflect the notion that presidents are exempt from criminal liability,” the filing says in another place. “[T]his instead underscores the unprecedented nature of (Trump’s) alleged conduct.”
From the start, Trump has benefited from the idea that he is just like any other politician, even if he perhaps says meaner and cruder things than previous presidents have done publicly. The response to his presidency and his behavior from political actors and outside observers is seen as excessive or biased, a view that Trump works to reinforce. It’s not that Trump is particularly worried about democracy; it’s that it poses a greater threat to the status quo, so the powers that be work harder to tear it down.
Smith’s record reinforces that this is not the case. Trump is an exception, and his actions after the 2020 election were exceptional. He is not a president under attack because he is a foreigner, but rather an exception among heads of state who have worked to undermine the democratic transfer of power.
The rest of Smith’s brief makes effective arguments against Trump’s legal argument regarding immunity. But his arguments about the exceptional nature of Trump’s behavior are the most important for all Americans to understand.
I repeat: “The severity, scale, and democratically damaging nature of the alleged crimes are unique in American history,” Smith’s filing states. Trump was indicted by a grand jury not for political reasons as usual, but because the exact opposite happened from November 2020 to January 2021.
washingtonpost
