Amici Brief Filed in the Case of the United States v. Donald Trump

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General Ashcroft and fifteen other former prosecutors, elected officials, other government officials, and constitutional lawyers, including individuals appointed in the Nixon, Reagan, George H.W. Bush, George W. Bush, and Trump Administrations, submitted an amici brief Friday to the U.S. Court of Appeals for the District of Columbia in the case United States v. Donald J. Trump—amici brief.

Democracy 21 claims the amici brief explains why “the immunity the defendant seeks in this case is inconsistent with our Constitution and would subvert the bedrock principle that no person is above the law.”

I am confused by Democracy 21’s claim because when I read the brief, I see it insisting the Constitution requires Impeachment and Conviction which has not occurred in Donald Trump’s case.

It’s less confusing if I just consider them liars or I’m missing something. Readers can tell me what I’m missing. The brief is linked below, and it’s only 25 pages if you are interested in reading it.

QUESTION PRESENTED

“Whether, and if so, to what extent, does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”

The brief states that the former president was acquitted of the impeachment, and special counsel Jack Smith has not charged Donald Trump with insurrection. They said this case is so important and politics must not play a part.

They noted that challenging presidential elections are part of our history.

“Sitting President Joe Biden is the Democrat Party’s presumptive candidate for President, seeking reelection to a second term. For the administration of the sitting President to criminally prosecute his predecessor and current political opponent presents constitutional concerns of the gravest magnitude,” it states.

“Weaponizing criminal statutes to prosecute a political opponent undermines the rule of law and our Constitution. Criminally prosecuting a President for official acts a President takes without the President first being impeached and convicted is contrary to the Constitution.”

SUMMARY OF THE ARGUMENT

“For the reasons this Court identified in Nixon v. Fitzgerald, the President of the United States cannot be subject to criminal prosecution for official acts the President takes during the President’s tenure in office unless the President is first impeached by the House of Representatives and convicted by the Senate.”

Nixon v. Fitzgerald supports immunity for the President, or he could do his job.

The report mentions history demonstrates the President must be immune from prosecution. It reviewed several examples of former presidents who violated the Constitution and again reinforced the principle of immunity for the President.

Two of the examples were Trump and FDR. Truman could have been prosecuted for dropping bombs on Japanese civilians. FDR could have been prosecuted for the racist internment of Japanese Americans.

As for “no man is above the law,” Amici says it’s a “trope” and “misses the point.” They went back to the Constitution and the Impeachment clause and said it must not be ignored.

The Constitution provides a process to make certain the president is not above the law, and it’s called Impeachment and Conviction in the Senate. Punishment can then follow.

“That constitutional structure requires that before the President can be civilly or criminally
sued or prosecuted for official acts the President takes during his (or her) tenure as President, the House must first impeach the President, and the Senate must then convict the President.”

CONCLUSION

This Court asked “whether, and if so to what extent, does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office?”

The answer to the Question Presented is this: a former President is immune from criminal prosecution for official acts taken during the President’s tenure in office except after conviction for such acts under the Impeachment Clause in Article I of the Constitu-
tion.

To allow the President of the United States to be criminally prosecuted for official acts (without the safeguard of first requiring impeachment and conviction by the House and Senate) would limit the constitutionally-protected authority of Presidents to take official actions without fear of politically-motivated reprisals from rivals and successors. This would open Pandora’s Box, throwing our Nation into an abyss in which the threat of criminal prosecution becomes a cudgel political rivals use to intimidate, harass, and retaliate against rivals.

The result would prove a great harm to our Nation and our constitutional Republic by
compromising the President’s ability to act considering our national interest without having to consider the possibility of a criminal prosecution by political opponents after leaving office.

Read it here: No 23-939 Amici Brief

The amici include: Bradford A. Berenson, Associate Counsel to the President in the George W. Bush Administration; Ty Cobb, Special Counsel to the President in the Trump Administration; George T. Conway III, attorney and principal author of the brief opposing immunity in Clinton v. Jones (1997); Philip Allen Lacovara, Deputy Solicitor General in the Nixon Administration and Counsel to the Watergate Special Prosecutor; Trevor Potter, former Chair of the FEC, appointed by President George H.W. Bush; Fern M. Smith, former U.S. District Court Judge, appointed by President Reagan; Olivia Troye, Special Advisor for Homeland Security and Counterterrorism to Vice President Pence; and William F. Weld, former Massachusetts Governor and U.S. Attorney in the Reagan Administration.


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