Special Counsel Jack Smith's team should present an extreme "hypothetical" argument against absolute immunity for presidents accused of crimes by suggesting it could be used to target Supreme Court judges, a legal expert has said.
Former federal prosecutor Joyce Vance suggested that the government should argue that if Donald Trump cannot be prosecuted for alleged crimes committed in office, then what is to stop a sitting president from ordering the "assassination of Supreme Court justices who disagree with him" knowing they would not face jail for it.
Joyce made remarks ahead of the April 25 hearing in which the Supreme Court justices will hear arguments on whether the federal charges against Trump over his alleged criminal attempts to overturn the 2020 election results can be dismissed as the allegations relate to his time in the White House.
Trump has pleaded not guilty to four felony charges in relation to Smith's investigation into the events which led up to the January 6 Capitol attack, with the proceedings on hold pending the results of the absolute immunity defense appeal.
Writing in her Civil Discourse blog, Vance noted a judge on the U.S. Court of Appeals for the D.C. Circuit previously dismissed Trump's lawyers' arguments that a president must first be convicted by the Senate before they can face criminal prosecution.
During a January hearing, Judge Florence Pan suggested that under these circumstances, a sitting president could order SEAL Team Six to assassinate a political rival, and then resign from office before being convicted by the Senate and therefore escape prosecution.
Vance said that Smith's team should now put forward a more "extreme version" of this argument on April 25 in relation to Supreme Court judges.
"The hypothetical, or 'hypo' as it's abbreviated in legalese, that I'm hoping the government will pose in argument is a more extreme version of the SEAL Team Six hypo we heard in the Court of Appeals, where a judge asked if Trump's theory would absolve him if he used the military to take out political opponents," Vance wrote.
"Why not take it a step further and tell the court that if Trump has the sort of broad immunity he claims he does, a president would be free to order the assassination of Supreme Court justices who disagree with him, and could not be prosecuted for doing that. Make the impact of Trump's argument unmistakable.
"The examples of conduct that would be permissible under Trump's view of immunity drive home how essential it is for the court to reject his appeal and send this case back on its way to trial," Vance added.
Trump's legal team has been contacted for comment via email.
V. James DeSimone, a Los-Angeles-based civil rights attorney, said that if the Supreme Court does rule that any president has continuing absolute criminal immunity, then it would be "inflicting a grievous blow" to its own legitimacy.
"The Court of Appeals for the District Columbia, when it ruled on this question of presidential immunity, already spelled out what a contradiction in terms it would mean for Trump to be immune from prosecution," DeSimone told Newsweek. "The logic of a timeless presidential immunity from criminal prosecution does not make any sense, and the average American can see that.
"It should not take a hypothetical example of a president ordering the assassination of his political opponent or even the assassination of Supreme Court justices for the justices themselves to see the inherent contradiction in giving unlimited power to the president," DeSimone added.
If the Supreme Court rules in favor of Trump and reverses the lower courts' decision, the federal case will be thrown out.
If the nation's highest court votes that Trump cannot cite absolute immunity, the case will return to Judge Tanya Chutkan, who froze proceedings pending the result of the immunity argument.
However, the start of any trial could still be several months away, with Chutkan previously assuring that Trump's legal team will be given months to prepare for the case once it returns to the court.
Other issues, such as jury selection, could also potentially provide major delays to the federal trial.
Trump, the presumptive 2024 Republican nominee, has long faced accusations he is purposely trying to delay the start of proceedings until after November's election.
If Trump beats President Joe Biden in November's election before the federal 2020 election obstruction trial has taken place, Trump could then order the Department of Justice to drop the case into him once he enters office.
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Ewan Palmer is a Newsweek News Reporter based in London, U.K. His focus is reporting on US politics, domestic policy ... Read more
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