Special Counsel Jack Smith filed his initial brief in the Supreme Court case brought by Donald Trump asking, “Whether and if so to what extent does a former President enjoy presidential immunity from criminal prosecution for conduct alleged to involve official acts during his tenure in office.”  Smith’s filing is informative, complete, and scathing.  Just a taste:

A. Petitioner asserts a novel and sweeping immunity from the federal criminal laws that govern all citizens’ conduct. Under this Court’s established separation-ofpowers framework, a claim of presidential exemption from a statutory limitation requires the President to identify an Article II basis that precludes the application of that congressional act. No presidential power at issue in this case entitles the President to claim immunity from the general federal criminal prohibitions supporting the charges: fraud against the United States, obstruction of official proceedings, and denial of the right to vote. The President’s constitutional duty to take care that the laws be faithfully executed does not entail a general right to violate them.

B.  History likewise refutes petitioner’s claim. The Framers never endorsed criminal immunity for a former President, and all Presidents from the Founding to the modern era have known that after leaving office they faced potential criminal liability for official acts.  The closest historical analogue is President Nixon’s official conduct in Watergate, and his acceptance of a pardon implied his and President Ford’s recognition that a former President was subject to prosecution.