Special counsel Jack Smith’s brief in Donald Trump’s election-fraud case contains a glaring error, according to a former Ronald Reagan administration official.
Smith’s dossier of evidence against the former president was unsealed on Oct. 2 by a federal judge. In what has been considered his “October Surprise” and deemed election interference by Trump, the 165-page brief laid out the argument that the former president knew his claims of election fraud were false, and that he had knowingly conspired to overturn Joe Biden’s victory.
The collection of evidence comes after the Supreme Court held in July that Trump was entitled to immunity from federal charges relating to him exercising acts within a president’s constitutional authority.
On Monday, David B. Rivkin Jr. and Elizabeth Price Foley penned an article for The Wall Street Journal, in which they took issue with Smith’s notion that Trump’s conversations with Vice President Mike Pence, and his communications with state officials and the public, were unofficial acts and therefore outside the zone of presidential immunity.
Jack Smith delivers remarks on the recently unsealed indictment on August 1, 2023, in Washington, D.C. Donald Trump was indicted on four felony counts for his alleged efforts to overturn the 2020 election.
Drew Angerer/Getty Images
Rivkin is an American attorney who held a number of legal positions in the administrations of Ronald Reagan and George H.W. Bush, while Foley is a professor of constitutional law at Florida International University.
Newsweek has contacted the Department of Justice to respond to the pair’s comments.
As outlined on page three of Smith’s brief: “The throughline of [Trump’s] efforts was deceit: the defendant’s and co-conspirators’ knowingly false claims of election fraud.”
However, according to Rivkin and Foley, Smith’s focus on Trump’s motives is a “critical legal error.”
According to the Supreme Court’s July decision, which reaffirmed a precedent established in Nixon v. Fitzgerald (1982), “in dividing official from unofficial conduct, courts may not inquire into the President’s motives.”
“Allowing such an inquiry would vitiate the president’s immunity, since virtually every presidential decision is based in part on political considerations,” Rivkin and Foley wrote, “and suits against a president would always allege improper motives.”
Therefore, they believe the only relevant question is whether a president’s acts were official or unofficial.
Pro-Trump protesters in front of the U.S. Capitol Building on January 6, 2021, in Washington, D.C. The case against the former president is ongoing.
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Smith’s brief argued that Trump’s efforts to “influence Pence” against certifying the results of the 2020 election were not protected by presidential immunity given that the vice president would here be carrying out his duties as president of the Senate, and that his conversations with state officials were private acts given the president plays “no official role in the congressional certification proceeding.”
“The court has rejected Mr. Smith’s cramped view of presidential authority on several occasions,” according to Rivkin and Foley, who cited a 1952 opinion from Justice Felix Frankfurter, later accepted by the Supreme Court’s in July. This held that “some Presidential conduct—for example, speaking to and on behalf of the American people…certainly can qualify as official even when not obviously connected to a particular constitutional or statutory provision.”
“Without immunity,” they continued, “the threat of civil and criminal liability would create, as George Washington put it in his Farewell Address, the ‘alternate domination of one faction over another, sharpened by the spirit of revenge’ with every new administration.”
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