Two judges appointed by President Joe Biden are allowing Republicans to file an amicus brief in the case deciding whether or not former President Donald Trump has presidential immunity from criminal prosecution.
The three appellate court judges hearing Trump’s immunity appeal granted a request on Tuesday from former officials of five Republican administrations. Circuit Judges Karen Henderson, J. Michelle Childs and Florence Pan allowed the 24 Republicans to participate, accepting their brief, which was filed in support of the Department of Justice’s position on the immunity claim.
Childs and Pan were appointed by Biden, while Henderson was appointed by former President George H. W. Bush.
The amicus brief, which is dated December 12, urged the appeals court to reject Trump’s immunity claim, arguing that doing so was “essential to protecting” how the Constitution determines the powers of the presidency.
Newsweek reached out to Trump’s attorneys via email for comment.
At the heart of the federal election interference case against Trump is the matter of presidential immunity, which the former president claims should protect him and his action on January 6, 2021, from being subjected to prosecution. Currently, the matter is tied up in courts, effectively putting the trial, which had been scheduled for March 4, on hold.
Special Counsel Jack Smith filed a petition to the Supreme Court asking the justices to step in on the claim earlier this month in an extraordinary move that sought to keep the case on its proposed timeline. But the court rejected Smith’s request, refusing to jump ahead of the appeals court, which has scheduled arguments on the claim to begin January 9. The claim could still make its way before the Supreme Court, albeit at a later date.
In the amicus brief submitted into court on Tuesday, the two dozen Republicans called Trump’s claims about former presidents being protected “a vast overstatement” and asked the appeals court to affirm the decision made by Judge Tanya Chutkan, who is overseeing the federal election interference case, to toss Trump’s argument.
“The last thing presidential immunity should do is embolden Presidents who lose re-election to engage in criminal conduct, through official acts or otherwise, as part of efforts to prevent the vesting of executive power required by Article II in their lawfully-elected successors,” the brief reads.
Justin Sullivan/Getty Images
“Presidents from John Adams to George H.W. Bush who lost reelection obeyed the Executive Vesting Clause by peacefully transferring the powers of the Presidency to their elected successors,” the Republicans said.
The amicus brief was signed by a number of high-profile Republicans, including retired Judge J. Michael Luttig and former Bush White House Adviser John Bellinger, among others.
The full list of former Republicans officials on the brief include:
- Donald Ayer
- John Bellinger
- Barbara Comstock
- John Danforth
- Mickey Edwards
- Charles Fried
- Stuart Gerson
- John Giraudo
- Peter Keisler
- Edward Larson
- J. Michael Luttig
- Carter Phillips
- Alan Charles Raul
- Paul Rosenzweig
- Nicholas Rostow
- Robert Shanks
- Christopher Shays
- Michael Shepherd
- Larry Thompson
- Stanley Twardy
- Christine Todd Whitman
- Wendell Willkie II
- Keith Whittington
- Richard Bernstein
Uncommon Knowledge
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Newsweek is committed to challenging conventional wisdom and finding connections in the search for common ground.