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How Trump’s lawyers would fail my constitutional law class with their Supreme Court brief on criminal immunity

Wayne Unger, Quinnipiac University, The Conversation on

Published in Political News

Former President Donald Trump claims that the president of the United States is absolutely immune from criminal prosecution.

On March 19, 2024, Trump filed his brief with the U.S. Supreme Court in the case brought by special counsel Jack Smith for Trump’s alleged criminal attempts to overturn the 2020 election.

Trump argued in the brief that the Supreme Court must dismiss the criminal indictment against him because his alleged conduct constituted official acts by a president and that presidents must be afforded absolute immunity for their official acts.

To support his contention, Trump cites Supreme Court cases, the Federalist Papers, and other writings from legal scholars. Trump argues that these documents show presidents hold absolute immunity from criminal prosecution.

But as a constitutional law scholar, I know that those writings, in fact, say the opposite. They say U.S. presidents are not absolutely immune from criminal prosecution.

If a student of mine had submitted a brief making the arguments that Trump and his lawyers assert in their Supreme Court filing, I would have given them an F.

 

It is standard practice for a person involved in a lawsuit and their lawyers to quote past cases and other legal writing to support their arguments.

It is also common for litigants to quote the Supreme Court justices themselves – either from their past opinions or other writings, such as law review articles – to advance their arguments.

But it is not standard practice to characterize those cases and documents as saying one thing when they say the complete opposite.

Trump begins by citing Marbury v. Madison from 1803, which is one of the court’s most consequential cases. He argues that Marbury v. Madison said that a president’s official acts “can never be examinable by the courts.”

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