The federal judge overseeing Donald Trump’s election interference case unsealed special counsel Jack Smith’s 165-page behemoth of a motion about Trump’s immunity claims on Wednesday. What Smith makes clear is that even though the conservative justices on the United States Supreme Court invented a brand new doctrine of presidential immunity just for Trump, it isn’t enough to save him from needing to stand trial for his criminal actions.
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Before digging into Smith’s motion, it’s worth remembering how out-of-pocket the Supreme Court’s immunity decision was. The court’s six conservatives—three of whom were appointed by the person they decided to swaddle in immunity—decided that Trump was absolutely immune from criminal prosecution for actions within his “conclusive and preclusive” authority, presumptively immune from prosecution for all official acts, and not immune for unofficial acts.
It was a wildly ahistorical decision with no basis in the Constitution and one that, as Justice Sonia Sotomayor wrote in her dissent, made the president “a king above the law.” Now, if a president can somehow pair his criminal act with one of his official duties, he can’t be prosecuted.
“Orders the Navy's Seal Team 6 to assassinate a political rival? Immune,” Sotomayor wrote. “Organizes a military coup to hold onto power? Immune. Takes a bribe in exchange for a pardon? Immune.”
Smith’s challenge was to explain how Trump’s actions to overturn the election were unofficial acts, not a function of his office. To anyone not wholly poisoned by conservative rhetoric, this is a no-brainer, as there’s no way to genuinely assert Trump’s increasingly frantic attempts to undo the 2020 election were related to his role as president. But given that the Supreme Court is currently dominated by people wholly poisoned by conservative rhetoric, Smith had to spend 165 pages carefully detailing each step Trump took to undermine the election, arguing that those steps were taken as a private citizen and candidate, and showing that the people conspiring with Trump were private attorneys and campaign personnel, not members of the government.
