Special Counsel Jack Smith’s insistence that President Trump’s efforts to overturn the 2020 election have no parallel in American history sets up the possibility that the Supreme Court will be called upon to map out the extent of presidential prerogative. 

Mr. Smith’s position that Mr. Trump is not entitled to immunity for the events surrounding January 6 was delivered in a filing late Thursday night. It comes in response to the former president’s stance that the case against him should be dismissed because it encroaches on constitutionally granted protection. 

The special counsel writes that Mr. Trump “is not above the law. He is subject to the federal criminal laws like more than 330 million other Americans, including Members of Congress, federal judges, and everyday citizens.” This means that Mr. Trump’s claims of “absolute immunity” could apply to certain civil liabilities, but not to criminal prosecutions. 

The prosecutor rejects what he calls Mr. Trump’s attempt to draw a “parallel between his fraudulent efforts to overturn the results of an election that he lost and the likes of Abraham Lincoln’s Gettysburg Address and George Washington’s Farewell Address.” These things, Mr. Smith writes, “are not alike.” Mr. Trump argued that he, like the father of his country and the Great Emancipator, was engaged in protected speech. 

The government pitches its case at the same constitutional quick that Mr. Trump sought to touch. Mr. Smith writes that “an individual who has served as President of the United States but is no longer in office may face investigation, indictment, trial, and, if convicted, punishment for conduct committed during the presidency.” This means that there is no “absolute criminal immunity for former presidents.”

A case from 1807 marks this point with Biblical cadence, reckoning that the “president is elected from the mass of the people, and, on the expiration of the time for which he is elected, returns to the mass of the people again.” Mr. Smith casts himself as a defender of the principle that “no one in this country, not even the president, is above the law.”

Mr. Trump argues that the Constiution’s Impeachment Clause, which ordains that the “party convicted shall nevertheless be liable and subject to indictment, trial, judgment and punishment, according to law,” means that an impeachment  acquittal — like Mr. Trump earned in the Senate —  bars further prosecution. 

Mr. Smith maintains that such an interpretation “would effectively preclude any form of accountability for a president who commits crimes at the end of his term of office.” The Department of Justice agrees, although it allows “that there is a reasonable argument that the Impeachment Judgment Clause should be read to bar prosecutions following acquittal by the Senate.” That is Mr. Trump’s position.

The government acknowledges that some immunities do attach to the presidency. In Nixon v. Fitzgerald, the Supreme Court found that in civil cases, “absolute Presidential immunity” encompassed “acts within the ‘outer perimeter’ of [the President’s] official responsibility.” In 2000, the DOJ’s Office of Legal Counsel found that a sitting president could not be charged or prosecuted because an indictment would “severely hamper the President’s performance of his official duties,” whose scope is chartered in the Constitution’s charge that he “take care that the laws be faithfully executed.”

Against these protections, Mr. Smith cites “universal agreement that a former president may be subject to federal criminal prosecution.” Turning to 69 Federalist, the special counsel explains that the Framers turned from the “British monarchy headed by an ‘inviolable’ King not ‘amenable’ to any ‘constitutional tribunal.’” Lawmakers, though, have the absolute protection of the Speech or Debate Clause  “for any Speech or Debate in either House.”  

For Mr. Smith, Hamilton imagined that the president would be “liable to prosecution and punishment in the ordinary course of law.” In the Republic’s early years, Chief Justice Marshall held that a sitting president could be served with a subpoena because he did not possess the common-law immunity from criminal process recognized in “the case of king,” a discarded relic of the Crown. 

Turning to more recent history, Mr. Smith reasons that “President Ford’s pardon of President Nixon covering acts during the latter’s presidency rested on the assumption that no post-presidential immunity from criminal prosecution existed.” The pardon testifies to the possibility of prosecution. Mr. Nixon, though, in contradistinction from Mr. Trump, had not already been determined by the Senate in an impeachment trial to be “not guility.”

In any event, Mr. Nixon accepted “full and absolute pardon for any charges which might be brought against me for actions taken during the time I was President.” Unspoken but telegraphed is the possibility that should Mr. Trump regain the White House, he could attempt to pardon himself for any federal conviction. First though, it will be up to the presiding judge, Tanya Chutkan, to decide if the Constitution mandates dismissal.