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Ex-lawmakers warn Supreme Court over Trump immunity claims

Former members, military officials file briefs in former president’s high court appeal

Those backing the special counsel’s prosecution of former President Donald Trump filed briefs as part of a Supreme Court case poised to shape this year’s presidential campaign.
Those backing the special counsel’s prosecution of former President Donald Trump filed briefs as part of a Supreme Court case poised to shape this year’s presidential campaign. (Bill Clark/CQ Roll Call file photo)

Former military officials, governors and former members of Congress from both parties on Monday urged the Supreme Court to let former President Donald Trump face charges tied to his effort to overturn the 2020 election.

Trump’s effort to prevent a trial on the charges, based on his claims that the presidency makes him immune to federal prosecution, are heading before the justices at oral arguments on April 25.

Those backing the special counsel’s prosecution of Trump filed briefs as part of a Supreme Court case poised to shape this year’s presidential campaign, since the justices are expected to decide the issue by the conclusion of the term at the end of June.

Across several briefs, former officials, good-government advocacy groups and others said allowing Trump to claim “presidential immunity” to federal prosecution would undermine the constitutional structure of the country.

Several former Republican officials, governors and members of Congress, including former Reps. Tom Campbell of California and Tom Coleman of Missouri and former Massachusetts Gov. Bill Weld, argued in a brief that siding with Trump would threaten the structure of the Constitution and incentivize future presidents to use the federal government to overturn elections they lost.

“Adopting Mr. Trump’s arguments would encourage Presidents to violate federal criminal statutes by employing the military and other armed federal personnel to overturn presidential election results,” the brief stated.

That brief from former Republican officials, which also included former Trump attorney turned critic Ty Cobb, said Trump’s arguments ran counter to what the founders intended and could allow a president to commit crimes while seeking to hold on to the office.

The brief also pointed out that Trump made exactly the opposite arguments during his second impeachment trial in 2021. The brief pointed to statements made by Republican Sens. Mitch McConnell of Kentucky and Thom Tillis of North Carolina, who justified their vote to acquit by saying Trump could still face charges.

“Defendant’s arguments to the contrary are part of a legal shell game in which defendant asserts that the forum for addressing his wrongdoing is always somewhere else. The Court should reject the ruse,” the brief said.

Prosecutors led by special counsel John L. “Jack” Smith have urged the justices to uphold the appeals court opinion in the case, which would allow Trump to face charges before the election. Smith told the justices in earlier filings that a criminal trial could occur as soon as three months after the justices rule.

The indictment in the case alleged Trump tried to stop vote counting in several states, organized false slates of electors and encouraged then-Vice President Mike Pence to reject the votes of states that Trump lost during the Electoral College count on Jan. 6, 2021.

Since federal prosecutors unveiled those charges against Trump last year, he has argued the presidency made him immune to federal charges for actions taken while in office.

The trial judge in the case disagreed, as did a unanimous panel of three judges at the U.S. Court of Appeals for the District of Columbia Circuit, who wrote that the presidency does not grant a former president blanket immunity from federal prosecution.

Trump asked the justices to intervene, and they agreed to hear arguments in the case later this month. The case has remained paused while the former president’s appeal plays out.

The case has involved nitty gritty details of criminal law and Senate procedure as well as stark hypotheticals such as whether a president could be immune to charges for ordering the assassination of a political rival.

In a filing last month, Trump argued that allowing a president to face federal charges could paralyze future presidents who would have to worry about facing indictments once they leave office.

In a brief filed last week, former Republican Sen. John Danforth, along with 10 other former members of Congress and a dozen other former executive and military officials, argued that allowing Trump’s immunity claims to prevail would threaten the structure of the Constitution and incentivize future presidents to use the federal government to overturn elections they lost.

“Adopting Mr. Trump’s arguments would encourage Presidents to violate federal criminal statutes by employing the military and other armed federal personnel to overturn presidential election results,” the brief said.

Similarly, former generals and other military officials filed a brief that argued a president immune to criminal charges would lack “moral authority” to command military members who could still face criminal punishment if they break the law.

Military members would still have an obligation to follow the law, “creating the likelihood that service members will be placed in the impossible position of having to choose between following their Commander-in-Chief and obeying the laws enacted by Congress,” the brief states.

The briefs are some of the last legal salvos before the case heads to the justices and come as Trump has fought to delay the multiple criminal cases against him until after the 2024 election.

The former president is scheduled to face trial in New York on state charges connected to hush money payments he made during his 2016 presidential campaign later this month, and trials in the federal case in Florida and state case in Georgia have not yet been scheduled.

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