By Catherine Yang
The U.S. Supreme Court has agreed to fast-track consideration of special counsel Jack Smith’s petition for an immediate ruling on whether former President Donald Trump can rely on the defense of presidential immunity in the federal election case.
The order was issued on Dec. 11, hours after Mr. Smith sought to bypass President Trump’s appeal on this issue by seeking a quick ruling by the nation’s highest court. President Trump has been ordered to file a response by 4 p.m. on Dec. 20.
Mr. Smith has charged President Trump on four counts regarding his actions to challenge the 2020 election results; President Trump has filed four motions to dismiss the case. Several were rejected by U.S. District Judge Tanya Chutkan, and the defense has since appealed the motion to dismiss based on presidential immunity to a federal appeals court.
The prosecutors are asking the Supreme Court “whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”
President Trump had asked the district court to pause proceedings pending appeal, noting that he would seek that pause from the appeals court if the district court didn’t grant it. If granted in either court, the legal strategy would certainly throw off the trial schedule.
Prosecutors are now asking the Supreme Court to issue judgment before the appeals court makes a decision.
“This case presents a fundamental question at the heart of our democracy,” the special counsel’s team argued in the new filing. “The district court rejected respondent’s claims, correctly recognizing that former Presidents are not above the law and are accountable for their violations of federal criminal law while in office.”
They argue that President Trump’s legal strategy in the appellate court now jeopardizes the March 4, 2024, trial date.
“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the prosecutors argued.
They claimed that President Trump is “profoundly mistaken” on the law and only the Supreme Court can “definitively resolve” the issues at hand. The court’s granting the writ of certiorari before judgment would “provide the expeditious resolution that this case warrants.”
The former president issued a statement describing the move as a “Hail Mary” on the prosecutor’s part, “by racing to the Supreme Court and attempting to bypass the appellate process.”
He also noted Mr. Smith’s poor record at the high court, which he said “has not been kind to him, including by handing down a rare unanimous rebuke when the Court overturned him 8-0 in the McDonnell case,” in which Mr. Smith prosecuted former Virginia Gov. Bob McDonnell.
President Trump’s campaign reiterated his belief that the prosecution is politically motivated.
“There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters. President Trump will continue to fight for Justice and oppose these authoritarian tactics,” it stated.
Trial Date
The trial on March 4, one day before Super Tuesday Republican primary elections in more than a dozen states, would be the first of the four criminal cases against President Trump.
The 45th president, who has pleaded not guilty to 91 criminal counts, was also facing a May trial date in a federal criminal case in the Southern District of Florida, which is almost certainly going to be postponed as the judge is set to revisit the trial schedule in January.
In Georgia, prosecutors have pushed for an August 2024 trial start, which President Trump’s attorney has argued falls too close to the general election, likely putting jurors in the position of voting for or against him while they attempt to try the case objectively.
President Trump is also facing criminal charges in Manhattan; prosecutors originally set a March 2024 trial date, but the court is set to postpone the case around the schedules of these other criminal cases.
On top of that, President Trump faces several civil lawsuits, one with trial ongoing in New York and another two set to go to trial in mid-January.
Presidential Immunity?
On Dec. 1, a federal appeals court ruled that presidential immunity doesn’t shield President Trump from lawsuits regarding the Jan. 6, 2021, Capitol breach and noted that the court wouldn’t be the final authority on the issue.
In November 2022, Mr. Smith was appointed special counsel on issues related to the Capitol breach, just days after President Trump announced his candidacy. This summer, he unsealed the indictment against President Trump alleging criminal conspiracy in his actions to challenge the 2020 results, tying much of the case to Jan. 6, 2021.
U.S. Circuit Judge Sri Srinivasan ruled that President Trump was acting as candidate Trump in much of what he is being sued for and that his actions weren’t official acts of a president.
“When a sitting president running for re-election speaks in a campaign ad or in accepting his political party’s nomination at the party convention, he typically speaks on matters of public concern. Yet he does so in an unofficial, private capacity as office-seeker, not an official capacity as office-holder. And actions taken in an unofficial capacity cannot qualify for official-act immunity,” he wrote, rejecting an appeal filed by President Trump, who is also facing civil lawsuits related to Jan. 6, 2021.
The judge added that the rejection of presidential immunity in this case assumes truth in the plaintiffs’ allegations against him, which will need to play out in district court.
“When these cases move forward in the district court, [President Trump] must be afforded the opportunity to develop his own facts on the immunity question if he desires to show that he took the actions alleged in the complaints in his official capacity as President rather than in his unofficial capacity as a candidate,” he wrote. “At the appropriate time, he can move for summary judgment on his claim of official-act immunity.”
The special counsel’s office argues that President Trump sought to “overturn the legitimate results of the 2020 presidential election by using knowingly false claims of election fraud” and that he conspired with several people outside of office to do so.
They rebutted President Trump’s presidential immunity defense by arguing that a former president doesn’t have the same immunity and that if he did, it “would be narrower than the ‘outer perimeter’ standard” afforded a sitting president.
The defense argued that President Trump has a history of taking allegations of election fraud seriously, pointing to several investigations he approved while in office, and argued that the speech about election fraud during the end of his term fell squarely within the duties of a president. The special counsel frames the situation quite differently, arguing that President Trump was aware of having legitimately lost the election when he made allegedly false claims about election fraud and “stolen” votes.
In the petition to the Supreme Court, they are also arguing that President Trump has been impeached on similar issues and that the immunity argument is “undercut” by the impeachment clause.
The special counsel has argued, and the district court affirmed, that to grant President Trump presidential immunity here would be to put him “above the law.”
If the Supreme Court agrees to issue judgment before the appeals court rules, it may throw off President Trump’s plans to stall the case past the general election.
Caden Pearson contributed to this report.
