Former President Donald Trump is doing his best to tie up special counsel Jack Smith’s election interference case for as long as possible. With the Supreme Court’s decision last week to forgo Smith’s request to skip to the end of the appeals process, Trump’s legal team is focused on appealing trial Judge Tanya Chutkan’s ruling from earlier this month. Trump is especially keen to reassert his “presidential immunity” defense that would effectively shield him from any of the charges Smith has brought against him.
The basis of this truly bonkers assertion is a favorite of Trump’s, that the separation of powers safeguards him from any kind of oversight.
Much of the brief Trump’s lawyers filed on Saturday is a rehash of the unfounded constitutional claims that Chutkan shot down. But among those well-trodden arguments, Trump all but requests the appeals court to rule that the judiciary has no power over anything he did while in office — to rule, in effect, that Chutkan has it wrong: He does possess the divine right of kings, and as such, no other branch of government can touch him.
The basis of this truly bonkers assertion is a favorite of Trump’s, that the separation of powers safeguards him from any kind of oversight. In the past, his lawsuits and defenses have focused on the legislative branch’s attempts to hold him to account or (bizarrely) claiming that the Justice Department can’t breach executive privilege, despite both the president and DOJ being part of the executive branch. This time around there’s a novel focus on the reach of the judiciary itself to police the actions of the president.
“Under the doctrine of separated powers, neither a federal nor a state prosecutor, nor a state or federal court, may sit in judgment over a President’s official acts, which are vested in the Presidency alone,” his lawyers write in their brief. They emphasize that a president’s official acts aren’t “examinable by the Judicial Branch,” a principle that extends back to the landmark 1803 Supreme Court case Marbury vs. Madison. Trump also contends that senior officials — like, for example, the president — shouldn’t face criminal charges from a “possibly hostile judiciary.”
Both of those arguments are based on a set of very, very tenuous assumptions. First, the idea that the judicial branch can’t touch him at all hinges precariously on the phrase “official acts.” It’s a broad phrase that, generally speaking, refers to actions taken by the president that involve enforcing duly passed laws. If President Joe Biden issues a policy related to the climate change provisions in the Inflation Reduction Act, for example, that’s an official act that can’t be the basis for civil or criminal charges against him.
For that to apply here, it would require that acts taken by Trump after the 2020 election were all “official acts” sanctioned under duly passed laws.
