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Donald Trump previously claimed in court that a president can be prosecuted once they leave the White House, special counsel Jack Smith's latest filing to an appeal court said.
Smith's filing suggests that Trump has been caught by his own words as he seeks complete immunity from his upcoming election interference trial.
In a filing at the weekend, Smith noted a submission in Trump v. Vance, in which then-President Trump sought to avoid a grand jury subpoena issued by then-Manhattan District Attorney Cy Vance.
Vance led a three-year investigation into Donald Trump's finances that did not result in any indictment.
In the Vance case, Trump's attorney submitted a legal document arguing that Trump sought only temporary immunity that "'would expire when the President leaves office' and therefore would not place the President 'above the law,'" Smith's court of appeals filing said.
"Indeed, the Executive Branch and multiple Presidents, including the defendant, have consistently acknowledged that any criminal immunity ends once a President leaves office," Smith added.
Trump was indicted on four counts of allegedly working to overturn the results of the 2020 election in the run-up to the January 6, 2021, riot at the U.S. Capitol. A jury will be selected in Washington, D.C., in February with a trial date set for March 4. He has pleaded not guilty to the charges.
It is one of four criminal cases that Trump is facing while he campaigns as the frontrunner for the 2024 Republican presidential nomination. He has also pleaded not guilty to charges in the three other cases and has repeatedly said that they form part of a political witch hunt.
Newsweek reached out to Trump's attorney via email for comment on Tuesday.
The filing was submitted ahead of oral arguments scheduled for January 9.
In December, Tanya Chutkan, the judge in Trump's election interference trial, refused his application for presidential immunity. Trump is now appealing that refusal to the Washington, D.C. Court of Appeals. All pre-trial motions in Chutkan's court have been halted while the Court of Appeals decides on Trump's presidential immunity. Trump's lawyers are refusing to handle any trial documents sent to them by Smith's office, including a proposed trial schedule.
In his submission, Smith said that Trump is looking for a "license" to commit crimes to stay in office.
"Rather than vindicating our constitutional framework, the defendant's sweeping immunity claim threatens to license presidents to commit crimes to remain in office. The founders did not intend and would never have countenanced such a result," Smith wrote.
Former federal prosecutor Joyce Vance wrote in her Civil Discourse blog on Monday that Smith's brief "tags Trump with an inconsistency between this position and the argument he made in an earlier case to avoid the reach of the law."
"The tone is gentle, but the argument is strong," she wrote.
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About the writer
Sean O'Driscoll is a Newsweek Senior Crime and Courts Reporter based in Ireland. His focus is reporting on U.S. law. ... Read more