Jack Smith Urges Appeals Court To Reject Trump’s Immunity Defense

Special counsel Jack Smith asked a federal appeals court on Saturday to reject former President Donald Trump‘s bid to get his 2020 election case tossed.

In a filing, Smith’s team urged the D.C. Circuit Court of Appeals to affirm a judge’s order denying Trump’s motions to dismiss the case based on claims of presidential immunity and double-jeopardy grounds ahead of arguments before a three-judge panel set for January 9.

Trump’s argument that he cannot be held to answer for charges related to an alleged plot to overturn the results of the 2020 election “threatens the democratic and constitutional foundation of our Republic,” Smith’s 82-page filing stated.

The claim of presidential immunity as well as a First Amendment defense were rejected by U.S. District Judge Tanya Chutkan, an Obama appointee, prompting an appeal by Trump earlier this month. Smith responded by asking the appeals court and, separately, the Supreme Court to quickly consider the matter. Smith’s gambit with the high court was rejected, but the case may end up there anyway after the appeals court finishes its review.

In a filing to the federal appeals court last week, Trump’s lawyers said their client may not be criminally prosecuted for specific conduct while in office unless he was impeached by the House and then convicted by the Senate — which he was not.

The indictment is “unlawful and unconstitutional,” said Trump’s legal team, arguing the district court’s order should be reversed and Smith’s case dismissed because the former president is being subject to a double jeopardy violation.

As he runs a third campaign for the White House, Trump is facing three other criminal cases, including another one led by Smith over the former president’s handling of classified documents, as well as civil litigation. Trump has broadly denied any wrongdoing and has argued that politically motivated prosecutors are conducting a “witch hunt” against him.

The trial in the 2020 election case is currently set to start on March 4, 2024 — one day before Super Tuesday — but the sparring in court over presidential immunity could push back the schedule.

Smith’s team asked the appeals court to implement its ruling five days after it is given to quickly set the stage for any further challenges. For the trial, prosecutors asked that any attempt by Trump to “inject politics” and use “improper evidence” for the 2020 election case not be permitted.