Legal AF by MeidasTouch - FED UP Jack Smith FIRES BACK against Trump in Appeals Court

Episode Date: December 30, 2023

Legal AF host Ben Meiselas reports the United States Government’s Answering Brief filed by Special Counsel Jack Smith in the DC Circuit Court of Appeals in connection with Donald Trump’s absolute presidential immunity claim. Remember to subscribe to ALL the MeidasTouch Network Podcasts: MeidasTouch: https://www.meidastouch.com/tag/meidastouch-podcast Legal AF: https://www.meidastouch.com/tag/legal-af The PoliticsGirl Podcast: https://www.meidastouch.com/tag/the-politicsgirl-podcast The Influence Continuum: https://www.meidastouch.com/tag/the-influence-continuum-with-dr-steven-hassan Mea Culpa with Michael Cohen: https://www.meidastouch.com/tag/mea-culpa-with-michael-cohen The Weekend Show: https://www.meidastouch.com/tag/the-weekend-show Burn the Boats: https://www.meidastouch.com/tag/burn-the-boats Majority 54: https://www.meidastouch.com/tag/majority-54 Political Beatdown: https://www.meidastouch.com/tag/political-beatdown Lights On with Jessica Denson: https://www.meidastouch.com/tag/lights-on-with-jessica-denson On Democracy with FP Wellman: https://www.meidastouch.com/tag/on-democracy-with-fpwellman Uncovered: https://www.meidastouch.com/tag/maga-uncovered Learn more about your ad choices. Visit megaphone.fm/adchoices

Special counsel, Jack Smith has just filed the answering brief in Donald Trump's appeal of the denial of his motion to dismiss the Washington DC criminal case on absolute presidential immunity grounds. In this answering brief, special counsel, Jack Smith gives all of the reasons why Donald Trump and no former president should ever be entitled to absolute presidential immunity for the criminal conduct they engage in while they are in office. Just take a look at how special counsel Jack Smith starts this brief.

Here's the introduction at states. For the first time in our nation's history, a grand jury has charged a former president with committing crimes while in office to overturn an election that he lost. In response, the defendant claims, referring to Donald Trump, the defendant claims that to protect the institution of the presidency, he must be cloaked with absolute immunity from criminal prosecution unless the House impeached and the Senate convicted him for the same conduct.

He is wrong. Separation of powers, principles, constitutional text, history, and precedent all make clear that a former president may be prosecuted for criminal acts he committed while in office, including most critically here, a legal act to remain in power despite losing an election. The presidency plays a vital role in our constitutional system, but so does the principle of accountability for criminal acts, particularly those that strike at the heart of the democratic process. Rather than vindicating our constitutional framework, the defendant, and again, in this answering brief, that's how Donald Trump is

referred to appropriately, the criminal defendant or the defendant, the defendant's sweeping immunity claim threatens to license presidents to commit crimes to remain in office. The founders did not intend and would never have countenance such a result. And multiple safeguards, ultimately enforced by the Article III courts, protect against any potential burdens on the presidency that the defendant claims to fear. The defendant asserts that this prosecution, quote, threatens to shatter the very bedrock of our republic. To the contrary, it is the defendant's claim that he cannot be held to

answer for the charges that he engaged in an unprecedented effort to retain power through criminal means, despite having lost the election that threatens the democratic and constitutional foundation of our republic. This court, referring to the DC Circuit Court of Appeals, should affirm an issue the mandate expeditiously to further the publics and the defendants compelling interest in prompt resolution of this case. In other words, DC Circuit Court of Appeals don't just rule against Trump by affirming judge Tanya Chutkin, the district courts denial of Trump's motion to dismiss the indictment

on absolute presidential grounds, do it quickly. Our founders would never have countenanced this despicable behavior by Donald Trump. And as I read that introduction to special counsel, Jack Smith's brief, I got chills. This is a document that we will be talking about forever throughout the history of the United States. This is something that our kids and grandkids and their kids and grandkids will be reading. This is a document that is an apotheosis to our democracy and our Constitution going through this brief that special counsel, Jack Smith filed. Here are the main arguments that he makes. First, the defendant has no immunity from federal criminal prosecution. Period. A, the separation of powers analysis provides no support for immunizing a former president from

federal criminal prosecution. Donald Trump argued that the executive branch should be immune from any accountability at all. Trump simply argued that the only form of accountability that could exist is the impeachment judgment clause in the Constitution. And if he is not convicted by the Senate, he claims that double jeopardy attaches and therefore a former president can never be prosecuted for any of their crimes. Special counsel Jack Smith then argues the constitutional text, historical practice, and other immunity doctrines do not support the defendant's contrary claim.

Jack Smith goes on to say, even if separation of powers, principles limited the federal prosecution of a former president in some unusual circumstance, those principles would not require dismissal here. And what did we say here on Midas Touch and on our Legal AF podcast that we thought were going to be very important cases for special counsel, Jack Smith, Court of Appeals decision in Blasting Game, as well as the 11th Circuit Court of Appeals rejection of Mark Meadows attempt for Federal Officer removal in the Fulton County District Attorney case where the 11th Circuit Court of Appeals held that Mark Meadows was not acting under the color of his authority when he was engaged in election interference or even involving himself in elections is reserved for the states that is not article to power.

Special counsel, Jack Smith, cites that recent Meadows decision by a right wing conservative 11 circuit. The panel there had a judge prior, right wing judge, and the Meadows panel that had two other Democratic appointees, but that decision in Meadows was then affirmed by another 11th Circuit panel in the Jeff Clark case that had two Trump appointees on there as well. And then in blasting game,

that was not a criminal case. That was a civil case regarding lawmakers and capital police and DC police who sued Donald Trump for monetary damages for his conduct relating to the insurrection and his attempt to overthrow the results of the election. And there the DC Circuit Court of Appeals held B costrums conduct involved election campaigning as pled interfering with the results of the 2020 election. That fell outside the outer perimeter of absolute presidential immunity, a doctrine that is recognized in civil cases in Nixon v Fitzgerald.

So the first arguments as we predicted here on might as touch network, Jack Smith was going to argue and does argue judge, Chuck in the district court judge, uh, the trial court judge in Washington DC, when she denied Donald Trump's motion to dismiss, she was right by saying that absolute presidential immunity does not apply in criminal cases for former presidents, but in the unusual circumstance that you may claim this doctrine that exists in civil cases, somehow applies in criminal cases, it cannot apply here based on blasting game meadows

and common sense that Trump's conduct is outside the outer perimeter of any possible absolute presidential immunity doctrine. Finally, special counsel, Jack Smith says, even if a former president were entitled to immunity from criminal prosecution, comparable to his immunity from civil liability, dismissal is not warranted here. And the defendant's acquittal at an impeachment trial does not bar this prosecution. It was a 67 page brief, a very well written brief. Two other points from that brief

that I think deserve some additional attention. Special counsel, Jack Smith gives this example. The implication of Donald Trump's of defendants brought immunity theory is sobering. In his view, a court should treat a presidential's criminal conduct as immune from prosecution, as long as it takes the form of correspondence with the state official about a matter in which there is a federal interest, a meeting with a member of the executive branch, or a statement of a matter of public concern, that approach would grant immunity from criminal prosecution to a president who accepts a bribe in exchange for directing a lucrative government contract to the payer,

a president who instructs the FBI director to plant incriminating evidence on a political enemy, a president who orders the National Guard to murder his most prominent critics, or a president who sells nuclear secrets to a foreign adversary because in each of these scenarios, the president could assert that he was simply executing the laws or communicating with the Department of Justice or discharging his powers as commander in chief or engaging in foreign diplomacy. By the way, special counsel, Jack Smith picked those examples not by accident, bribery, selling nuclear secrets, and talking about executing your political rivals.

There's a reason that special counsel, Jack Smith gave those examples. Then special counsel later in the brief goes on to say that the indictment, the special counsel, Jack Smith, brought that was unsealed in August, the indictment, thus alleges conspiracies to advance the defendant's prospect, Trump's prospect, as a candidate for elective office in concert with private persons as well as government officials, citation, blasting game. And we're blasting game held, the president's conduct falls beyond the outer perimeter of his official duties if it can only be understood as having been undertaken in his capacity

as a candidate for re-election. And the defendant offers no plausible argument that the federal government function and official proceeding that he is charged with obstructing, establish a role, much less an exclusive and conclusive role for the president. See, Georgia, the meadows, the decision that was reached about two weeks ago on December 18th, 2023 by the 11th Circuit.

I was telling you when that meadows decision was reached, I said, Jack Smith would brimmer, said, Jack Smith was going to be watching that Mark Meadows decision. It has broader implications than just meadows and Jack Smith put that in here as well. Now in conclusion, let's just compare again that intro by special counsel Jack Smith and his answering brief to the intro and Donald Trump's opening brief. Here's the intro and special counsel Jack Smith's answering brief one more time for the first time in our nation's history. A grand jury has charged a former president with committing crimes while in office to overturn an election that he lost.

In response, the defendant claims that to protect the institution of the presidency, he must be cloaked with absolute immunity from criminal prosecution, unless the House impeached and the Senate convicted him for the same conduct. He is wrong, separation of power, principles, constitutional, text history, and president all may clear that a former president may be prosecuted for criminal acts he committed while in office, including most critically here, illegal acts to remain in power despite losing an election. Here was the intro from Trump's opening brief. During the 234 years from 1789 to 2023, no current or former president had ever been criminally prosecuted for official acts.

That unbroken tradition died this year, and the historical fallout is tremendous. The indictment of President Trump threatens to launch cycles of recrimination and politically motivated prosecution that will plague our nation for many decades to come and stands likely to shatter the very bedrock of our republic, the confidence of American citizens in an independent judicial system. In Trump's opening brief, I see extortion. I see trying to destroy the country, rip the fabric apart and having subtle threats, not so subtle threats. In Jack Smith's opening brief, in the answering brief, in the introduction, it is about our

democracy. It is about law and order and that no one, no one, even a former president, no one is above the law, a powerful filing by special counsel Jack Smith and the answering breed. So what happens next on January 2nd, Trump will be able to file his reply. Then on January 9th, we have oral argument before the DC Circuit Court of Appeals. And then we will get an order shortly thereafter. Then we will see what happens with the Supreme Court. And whether the Supreme Court then accepts the petition for certiori that I have no doubt special counsel, Jack Smith will seek to expedite.

That's what the Supreme Court's been waiting for. We will keep you updated, powerful, powerful brief by special counsel, Jack Smith. I got chills just reading it. Hit subscribe. We're on our way to two million subscribers. Thanks to your support. Check us out at patreon.com slash might as such. just reading it. That's right, gear up right now with your convict 45 Ts and pins at store.mytastouch.com. That's store.mytastouch.com.