By Catherine yang
The U.S. Supreme Court rejected on Friday a petition by special counsel Jack Smith for an immediate review of a defense in one of two cases he is prosecuting against former President Donald Trump.
“Petition for a writ of certiorari before judgment denied,” the unsigned order reads.
A 1982 Supreme Court opinion had established absolute immunity for presidents from civil suits, but as both parties have argued, the bounds of immunity from criminal prosecution have not been defined.
If the Supreme Court had agreed to review the presidential immunity defense, it would have established the outcome of President Trump’s motion to dismiss this case based on presidential immunity in the appeals court.
It’s also a defense he has raised in several other cases, including civil cases, albeit unsuccessfully.
Both parties argued the case is of historical significance, citing it as evidence to either expedite or slow down the proceedings. In court briefings, the parties argued over the framing of President Trump’s presidential immunity defense.
Appeals Court Will Expedite Case
Earlier this month, U.S. District Court Judge Tanya Chutkan denied a motion to dismiss based on presidential immunity, allowing President Trump to take action in the U.S. Court of Appeals.
Prosecutors swiftly filed a request to expedite the appeal, which the appeals court quickly granted.
President Trump’s opening brief is due Dec. 23, and the prosecutors’ reply by Dec. 30.
The first hearing has already been scheduled for Jan. 9; the appeals court initially announced a stay of all other proceedings pending “final action” from the Supreme Court. The high court’s denial allows the appeal process to continue.
President Trump is arguing that all the actions he’s been charged for were ones done in his official capacity as President of the United States.
That these official acts are covered under “presidential immunity” is the core of this particular defense.
While the Supreme Court has outlined absolute immunity from civil suits for presidents, defense attorneys argued that opening up presidents to criminal prosecution for acts in office would have reverberating effects.
Prosecutors argued this is not the issue at hand at all, and that presidential immunity does not apply because they are charging President Trump for crimes he committed during the period he was in office.
This dual framing cuts to the heart of pretrial arguments that have been made so far; the prosecutors and defense have pointed to the same set of facts on public record, with one side arguing that they were illegal and the other arguing that they were lawful.
Supreme Court May Still Impact Case
The high court may yet affect the outcome of this case before trial, as it accepted a separate Jan. 6-related issue on Dec. 13.
Three petitions were made at the Supreme Court challenging the Department of Justice’s novel use of charging defendants with corruptly obstructing an “official proceeding.” The original statute is related to evidence tampering, but in Jan. 6 cases it’s been used to refer to Congress’s counting of the votes.
This affects some 330 cases, including President Trump’s, and if the Supreme Court deems it an improper use, it could majorly complicate President Trump’s case as prosecutors rush to bring it to trial in the current term.
The original trial date for the case was set to be March 4, 2024, just one day before the Super Tuesday Republican primaries take place across the country. Prosecutors have noted this is no longer likely, but stressed the importance of trying the case in the current court term.
While prosecutors have argued repeatedly in separate courts that there is a need to bring the case to trial quickly, defense attorneys have argued the case should be delayed for various reasons, from the 13 million pages of discovery to review to the fact that the defendant is the likely Republican party nominee for the 2024 presidential election.
Trump attorneys have asked for delays as far as two years out, which were swiftly denied in the district court.
If the appeals court rules against President Trump, he still has the right to 45 days to seek a rehearing from the entire bench, and 90 days to seek review from the Supreme Court on the appeals court ruling.
And even if the presidential immunity appeal does not move the timeline back, the defense will almost certainly make other moves to delay—and dismiss—the case.
In the district court, President Trump had also filed three other motions to dismiss the case: on constitutional grounds, on statutory grounds, and based on “vindictive and selective prosecution.”