Jack Smith Disputes Trump’s Claims in Appeals Court

Jack Smith, Trump Both Urge SCOTUS to Consider Case as First in Nation's History


Presidential immunity applies to civil liability only and the criminal charges don’t violate the principles of double jeopardy, the special counsel claims.

Special Counsel Jack Smith Saturday urged the U.S. Court of Appeals for the D.C. Circuit to reject President Donald Trump’s immunity and double-jeopardy claim that he will be retried for similar charges on which he has already been acquitted.

President Trump is not entitled to immunity in the election case and the criminal charges against him also didn’t violate the principle of double jeopardy, the prosecutors argued.

Immunity for a U.S. president applies to civil liability only and not criminal, the special counsel’s office claimed.

“The defendant, a former President, does not enjoy immunity from federal prosecution for the offenses charged in this case. Under separation-of-powers analysis, the President’s unique constitutional status provides immunity from civil liability for official conduct … but it does not render a former President immune from criminal liability when charged with violations of generally applicable federal criminal statutes,” reads the filing.

Meanwhile, although President Trump has been acquitted after being impeached over an event connected to Jan. 6, the special counsel’s office argued that its criminal charges filed against him don’t violate the principle of double jeopardy because the only remedies in an impeachment proceeding are removal from the office and disqualification. Mr. Smith argued those likely don’t meet the term “jeopardy.”

Even if President Trump was put into jeopardy during the impeachment proceeding, the indictment charges filed by his office are different from what President Trump was impeached for, the special counsel argued.

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Accordingly, Mr. Smith asked the appeal court to reject President Trump’s immunity and double-jeopardy defenses and affirm the district court’s ruling.

Mr. Smith also pushed the court to rule on this promptly.

“For the foregoing reasons, the Court should affirm the district court’s order denying the defendant’s motions to dismiss on Presidential-immunity and double-jeopardy grounds,” the prosecutors wrote. “The Government respectfully requests the Court to issue the mandate five days after the entry of judgment. Such an approach would appropriately require any party seeking further review to do so promptly.”


Judge Tanya Chutkan for the U.S. District Court for the District of Columbia ruled on Dec. 1 that President Trump is not immune from prosecution in the government’s election interference case.

In her ruling, Judge Chutkan said the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

“Former Presidents enjoy no special conditions on their federal criminal liability,” she wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

 U.S. District Judge Tanya Chutkan in a file photo. (Administrative Office of the U.S. Courts via AP)
U.S. District Judge Tanya Chutkan in a file photo. (Administrative Office of the U.S. Courts via AP)

The former president appealed the ruling in the D.C. Circuit Court, which agreed to expedite the case per a request from the special prosecutor’s office.

According to the order, President Trump’s opening brief was due by Dec. 23. The order emphasized that issues and arguments should be raised in the opening brief, discouraging new points in the reply brief for consideration.

“The court ordinarily will not consider issues and arguments raised for the first time in the reply brief,” reads the order.

This decision follows statements by the attorneys representing President Trump accusing the special counsel’s office of election interference in a recent appeals court filing after Mr. Smith requested to expedite the appeal so that the case can go to trial on March 4, 2024. March 4 is one day before Super Tuesday, the U.S. presidential primary election day.

District Judge Chutkan agreed to pause the case in the district court while the appeal is pending.

“The court agrees with both parties that Defendant’s appeal automatically stays any further proceedings that would move this case towards trial or impose additional burdens of litigation on Defendant,” she wrote. “The court hereby stays the deadlines and proceedings scheduled by its Pretrial Order.”

She clarified that this would pause the pretrial deadlines, not vacate them.

Jack Smith Accused of Rushing Trial

In an apparent push for a rushed trial in the Trump case, the special counsel asked the D.C. Circuit Court and the U.S. Supreme Court (SCOTUS) to rule on President Trump’s claims of presidential immunity and double jeopardy.

The circuit court agreed to act swiftly, while the SCOTUS rejected Mr. Smith’s request for it to hear the case ahead of proceedings in the circuit court, which was widely regarded as a victory for President Trump.

“The petition for a writ of certiorari before judgment is denied,” the highest U.S. court ruled on Dec. 22.

President Trump’s attorneys have accused the special counsel’s office of pushing to rush the case through the courts.

“The only coherent principle that emerges from the prosecution’s filings is based on strategic gamesmanship rather than the law: On behalf of the Biden Administration, the prosecution will do everything that it can to rush to an unconstitutional and fundamentally unfair trial to try to prevent President Trump from winning the 2024 election, which he is currently leading,” President Trump’s attorneys wrote in a court filing.

The defense team has already accused the prosecution of being politically motivated in multiple court filings, echoing President Trump’s public speeches claiming that the indictments against him have come at the behest of President Joe Biden, his chief political rival for reelection.

Catherine Yang, Caden Pearson, and The Associated Press contributed to this report.

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