Jack Smith argues Trump's immunity defense could allow president to murder, sell nuclear secrets

Trump's arguments mean that a president would be immune from prosecution for all criminal charges so long as the commander-in-chief argued they were done in an official capacity, Smith said.

By Madeleine Hubbard

Published: December 31, 2023 9:09am

Updated: December 31, 2023 12:30pm

Allowing former President Donald Trump to use the presidential immunity defense could pave the way for a president to claim immunity from numerous charges such as murder and the sale of nuclear secrets so long as it was done under the claim of official activities, according to special counsel Jack Smith.

Trump has argued that he is immune from criminal prosecution for activities that fall under his official presidential responsibilities, but Smith's office, which charged Trump with allegedly attempting to overturn the 2020 election in his favor, vehemently denied such claims in an 82-page court filing Saturday.

Trump's "approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary," Smith argued.

Prosecutors said that in all of those examples, "the President could assert that he was simply executing the laws," and thus be immune from prosecution.

Smith made the filing in the D.C. Court of Appeals after the Supreme Court earlier this month rejected his request to rule on Trump's immunity claims before an appeals court made a decision on the arguments.

If Trump prevailed on presidential immunity claims, the case against him still should not be dismissed because the charges against him fall beyond his official responsibilities, Smith also argued.

"Even if a former President could claim immunity from criminal prosecution commensurate with his immunity from civil damages liability for official conduct, dismissal would be unwarranted because the indictment contains substantial allegations of a plot to overturn the election results that fall well outside the outer perimeter of official Presidential responsibilities," prosecutors wrote.

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