The attorneys for former President Donald Trump have shocked the world with a Supreme Court filing that cites the work of Justice Brett Kavanaugh.
The attorneys filed a brief on Tuesday demanding “absolute immunity” for the former president using many of the same arguments that they were unsuccessful within the lower courts.
“A former President enjoys absolute immunity from criminal prosecution for his official acts. Criminal immunity arises directly from the Executive Vesting Clause and the separation of powers. From Marbury through Fitzgerald, and beyond, this Court has consistently held that Article III courts cannot sit in judgment directly over the President’s official acts, whether before or after he leaves office. A fortiori, the courts cannot sit in criminal judgment over him and imprison him based on his official acts,” the attorneys said.
But they added some quotes from Kavanaugh to strengthen their argument.
In short, “a President who is concerned about an ongoing criminal investigation is almost inevitably going to do a worse job as President.” Brett M. Kavanaugh, Separation of Powers During the FortyFourth Presidency and Beyond, 93 MINN. L. REV. 1454, 1461 (2009).
“Prosecution or nonprosecution of a President is, in short, inevitably and unavoidably a political act.” Brett M. Kavanaugh, The President and the Independent Counsel, 86 GEO. L.J. 2133, 2159 (1998). This observation applies to former Presidents as well—and it applies most of all to a former President who is the leading candidate to replace the incumbent who is prosecuting him.
In requesting the review, Trump’s team argued in court documents that “if the prosecution of a President is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination.”
“Criminal prosecution, with its greater stigma and more severe penalties, imposes a far greater ‘personal vulnerability’ on the President than any civil penalty,” the request continues, according to Fox News. “The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts — especially the most politically controversial decisions.”
Trump’s request also says that the president’s “political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution.”
