Trump cites Founding Fathers in telling Supreme Court why he should not be prosecuted

WASHINGTON − Former President Donald Trump highlighted concerns from America's Founding Fathers about hyper-partisanship to argue in a filing with the Supreme Court on Monday that he shouldn't be prosecuted for trying to overturn the 2020 election.

In Trump's final brief laying out his case before the Supreme Court hears oral arguments on April 25, his lawyers cited writings from George Washington and James Madison to bolster his case that opening the door to presidential prosecutions would invite political abuse.

Washington, in his farewell address, warned against the "alternate domination of one faction over another, sharpened by the spirit of revenge natural to party dissension, which in different ages and countries has perpetrated the most horrid enormities.”

Madison cautioned that “the diseases of faction … have proved fatal to other popular governments," Trump's lawyers wrote.

"The radical innovation of prosecuting a former President for official acts will fulfill those ominous prophecies," the lawyers concluded.

Former President Donald Trump returns to the courtroom after a break during the start of jury selection for his trial at Manhattan Criminal Court on April 15, 2024 in New York City.
Former President Donald Trump returns to the courtroom after a break during the start of jury selection for his trial at Manhattan Criminal Court on April 15, 2024 in New York City.

Justice Department Special Counsel Jack Smith has dismissed such concerns, telling the court presidents can function effectively without criminal immunity, something that neither the framers of the Constitution nor any other president contemplated.

“To the contrary, a bedrock principle of our constitutional order is that no person is above the law— including the President,” Smith wrote in his brief previewing the oral arguments that was filed last week. “Nothing in constitutional text, history, precedent, or policy considerations supports the absolute immunity that petitioner seeks.”

Trump, the presumptive GOP nominee for president, wants the Supreme Court to dismiss his indictment on federal charges he tried to steal the 2020 election, arguing criminal prosecution presents a “mortal threat” to the independence of the presidency.

Three of those nine justices were appointed by Trump when he was president, giving the Court a conservative supermajority comprised of six people appointed by Republicans.

Related: A former cop yelled 'charge' on Jan. 6. How his Supreme Court case could help Trump.

Even if Trump loses his appeal, the Supreme Court may not reach a decision quickly enough for a trial to proceed in time for a verdict before the November election.

Trump has pleaded not guilty to four federal charges in the case before the Supreme Court − three for conspiracy and one for obstruction − for falsely claiming election fraud and trying to overturn the legitimate election results.

Trump has repeatedly claimed that the charges are politically motivated. If he returns to the White House, he could appoint an attorney general who would seek to dismiss any pending federal charges. Trump could also simply pardon himself, although his power to do so is debated.

But Trump’s preferred outcome is for the Supreme Court to entirely dismiss the indictment, an outcome experts say is unlikely.

While former presidents have broad immunity from civil lawsuits for official actions taken while serving in the White House, Trump has attempted to claim sweeping immunity from criminal prosecution.

This article originally appeared on USA TODAY: Trump cites Founding Fathers in arguing for immunity to Supreme Court