A group of former Republican federal officials on Tuesday warned a federal court to reject former President Donald Trump’s presidential immunity claim in his D.C. election subversion case.
The group in an amicus brief filed to the Court of Appeals in the District of Columbia warns that ruling that Trump is immune from prosecution would “encourage” future presidents to commit crimes to stay in power.
"Nothing in our Constitution, or any case, supports former President Trump's dangerous argument for criminal immunity," the brief said, according to Business Insider.
The Republican authors argued that Trump’s claim that he is immune in the case because he was president at the time is “especially weak.”
"The last thing presidential immunity should do is embolden Presidents who lose re-election to engage in criminal conduct, through official acts or otherwise, as part of efforts to prevent the vesting of executive power required by Article II in their lawfully-elected successors," they wrote.
Allowing future presidents to commit crimes to alter election outcomes would turn the Constitution “on its head,” they added.
"These terrifying possibilities are real, not remote,” wrote the group, which included former UN Ambassador and Sen. John Danforth, former Reagan Solicitor General Charles Fried, and former CPAC Chairman and Rep. Mickey Edwards.
U.S. District Judge Tanya Chutkan rejected Trump’s immunity argument, writing that the presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass.” The appeals court is set to review the matter after the Supreme Court last week rejected special counsel Jack Smith’s request to fast-track it.
Though the appeals process is likely to delay the case beyond the scheduled March trial date, legal experts widely expect Chutkan’s ruling to hold up.
“It's kind of ridiculous,” Paul Saputo, a Texas defense lawyer, told The Daily Beast. “We're not even going to have a 5-4 decision. I don’t think it's going to be a close call. They realize that in order for them to really keep the country together, it's got to be pretty unanimous.”
But Michael Waldman, the head of the Brennan Center for Justice at New York University Law School, acknowledged that there is “not much precedent” on post-presidential prosecutions.
“There have been so few presidents as crooked as Trump,” Waldman told the outlet, adding that the Justice Department’s policy against indicting a sitting president relies on the assumption that “you can prosecute someone after-the-fact.”
“Even if the Supreme Court doesn’t want a president always looking over his back... if they want to try to draw a line, what they can say is, ‘This was not just some random act he did while in office,” Waldman explained. “This was his attempt to overthrow the Constitution,” he said. “This was about the presidency. You can’t use presidential immunity... to cling to the presidency.”
Former U.S Attorney Harry Litman told CNN that the D.C. case poses “the biggest threat” to Trump because even with the delays the trial is likely to occur before the election.
"There is still a lot of space, even if we lose a couple months, for that to be tried and go to the jury, conviction, one might think," he said. "Plenty of time before the election, though; not plenty of time before he secures the nomination. But, that to me, is coming at him with the most seriousness."
