Special Counsel Asks Supreme Court to Decide if Trump Is Immune From Prosecution

Jack Smith, the special counsel prosecuting former President Donald J. Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Mr. Trump’s argument that he is immune from prosecution.

The request was unusual in two ways: Mr. Smith asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.

“This case presents a fundamental question at the heart of our democracy: 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,” Mr. Smith wrote.

Mr. Smith’s filings represented a vigorous plea to keep the trial on track by cutting off an avenue by which Mr. Trump could cause delays.

A speedy decision by the justices is of the essence, Mr. Smith wrote, because Mr. Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the criminal trial. The proceeding is scheduled to begin on March 4 in Federal District Court in Washington.

Any significant delays could plunge the trial into the heart of the 2024 campaign season or push it past the election, when Mr. Trump could order the charges be dropped if he wins the presidency.

“The United States recognizes that this is an extraordinary request,” Mr. Smith wrote. “This is an extraordinary case.”

The trial judge, Tanya S. Chutkan, rejected Mr. Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while in office.

In her ruling two weeks ago, she condemned his attempts to “usurp the reins of government” and said there was nothing in the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.

Mr. Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also asked Judge Chutkan to freeze the election interference case in its entirety until the appeal was resolved.

In his Supreme Court brief, Mr. Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Judge Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.

In what appeared to be an attempt to cover all bases, Mr. Smith’s team also filed a request to the appeals court in Washington on Monday to decide the immunity question quickly.

Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging Judge Chutkan’s ruling. All along, he and his lawyers have had an alterative strategy: to delay the trial for as long as possible.

If the trial were put off until after the election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.

Even if Mr. Trump’s lawyers are unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September.

That would present Judge Chutkan with a difficult decision: Should she hold the trial at a time Mr. Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial after the race is over?

Mr. Smith urged the justices to move fast.

He asked the court to use an unusual procedure to leapfrog the appeals court, “certiorari before judgment.” It has been used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry S. Truman’s seizure of the steel industry.

The procedure used to be rare. Before 2019, the court had not used it for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. As of late last year, he found, the court has used it 19 times since.

Among recent examples in which the court bypassed appeals courts were cases on abortion, affirmative action and student debt forgiveness.

Derek Muller, a law professor at Notre Dame, said the procedure remained unusual.

“It’s always a long-shot bid for the Supreme Court to hear a case like this, without waiting for the process to play out in the lower courts,” he said. “That said, Smith is rightly concerned about a slow appeals process that may interfere with a trial date and run even closer to Election Day. It seems unlikely it will persuade the Supreme Court to intervene, but it is worth asking given the risks of delay.”

Mr. Smith’s request was based on an argument that prosecutors have used several times in the election interference case: that the public itself, not just the defendant, Mr. Trump, has a fundamental right to a speedy trial.

As in the Nixon tapes case, Mr. Smith wrote, “the circumstances warrant expedited proceedings,” adding: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”

Mr. Smith asked the Supreme Court to consider a question it has never addressed before: whether the Constitution confers presidential immunity from criminal prosecution.

Mr. Smith acknowledged that the Supreme Court said in 1982 that former presidents enjoy some special protections, at least in civil suits — ones from private litigants seeking money — and that the Justice Department has long taken the view that sitting presidents cannot be indicted.

“But those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former president, asserts,” Mr. Smith wrote. “Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.”

Mr. Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. It was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.

By a 5-to-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

Other Supreme Court precedents seem to be of no help to Mr. Trump.

In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.

And more recently, the Supreme Court ruled by a 7-to-2 vote in Trump v. Vance in 2020 that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.

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