Special Counsel Jack Smith is now playing defense, with the Trump campaign looking to present the issue of presidential immunity to the appeals court.
On Saturday, Jack Smith responded to the appeal filed at the D.C. Circuit Court of Appeals, rebuffing the claim that Trump has immunity.
The Trump team lost the initial filing, as we expected. It took Judge Chutkan no time at all to rule against Trump on the immunity claim.
Special Counsel Jack Smith then tried to expedite the ruling to the Supreme Court in a move to try to keep this case on track for its March 4 scheduled start date. The Supreme Court rejected Smith's motion, which will now allow Trump to seek relief in lower courts, giving Trump at least one more opportunity to have Chutkan's ruling struck down before this issue goes before the Supreme Court.
After the Supreme Court issued its ruling, Trump's team filed the appeal with the D.C. Circuit Court of Appeals, arguing that Trump's actions were as a sitting president to defend the integrity of the election; therefore, he has absolute immunity from prosecution.
On Saturday, Smith submitted the response to the appeal filed by Trump's Defense team. It stated:
"An individual who has served as President but is no longer in office may face investigation, indictment, trial, and, if convicted, punishment for conduct committed during the Presidency.
"The President stands alone in the constitutional firmament, but legal principles and historical evidence establish that, once out of office, a former President may face federal criminal prosecution like any other citizen."
Smith's argument clearly made reference to the initial ruling by Judge Chutkan, who had ruled that actions are punishable, even as president, if they are deemed to be criminal.
The key point to this entire case is whether Trump was acting as a president or an individual at the time of the alleged crime.
Trump maintains his actions were done as a sitting president, looking to ensure the integrity of the elections. Smith is arguing, and Judge Chutkan agreed, that the rally that day was not an event by the president but rather a campaign-style event, thereby nullifying Trump's immunity.
This will be an uncomfortable argument for any court, but especially true for this Supreme Court, which has three Trump-appointed justices and a justice who is already under fire for his wife's actions after the election results were declared.
I have read the opinions of numerous legal experts, and whether they agree or not on Trump's role, there is still a general consensus that this suit could change the decision-making process for presidents moving forward, something that Judge Chutkan even hinted about in her ruling.
