
Jack Smith, the special prosecutor prosecuting former President Donald J. Trump for plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Mr. Trump’s argument that he is in shelter 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 act with exceptional speed.
“This case poses 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 whether he is constitutionally protected from federal prosecution when he was impeached but not convicted before the criminal proceedings began. “wrote Mr. Smith.
Mr. Smith’s filings represented a forceful plea to keep the trial on track by removing an avenue through which Mr. Trump could cause delays.
A quick decision by the justices is essential, Mr. Smith wrote, because Mr. Trump’s appeal of a trial judge’s decision rejecting his immunity request puts the criminal trial on hold. Proceedings are expected to begin March 4 in the federal district court in Washington.
Any significant delay could plunge the trial into the heart of the 2024 election campaign or push it beyond the election, when Mr. Trump could order the charges dropped if he wins the presidency.
“The United States recognizes that this is an extraordinary request,” Mr. Smith wrote. “This is an extraordinary case.”
Trial judge Tanya S. Chutkan rejected Mr. Trump’s sweeping claims that he had «absolute immunity» from the election interference indictment because it was based on the actions he had taken during his mandate.
In her ruling two weeks ago, she condemned his attempts to «usurp the reins of government» and said nothing in the Constitution or American history supports the proposition that a former president should not be bound by federal criminal law.
Mr. Trump appealed the decision to the United States 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 is resolved.
In his brief to the Supreme Court, Mr. Smith acknowledged that the election case could not be decided until the appeal on the immunity issue was resolved. On Sunday, his team filed documents with Judge Chutkan asking him to maintain the March 4 trial date and saying they could still work on some aspects of the case even during the appeal hearing.
In what appears to be an attempt to cover all bases, Mr. Smith’s team also filed a request on Monday to the Washington appeals court to quickly decide the immunity issue.
Winning the appeal of the immunity ruling was only one of Mr. Trump’s goals in challenging Judge Chutkan’s ruling. From the beginning, he and his lawyers had an alternative strategy: delay the trial as long as possible.
If the trial were postponed until after the election and Mr. Trump won, he could ask his attorney general to simply dismiss the charges. Holding a trial after the end of the presidential race would also mean that voters would not have access to evidence collected by prosecutors about Mr. Trump’s efforts to overturn the results of the last election before deciding on the opportunity to re-elect him. in 2024.
Even if Mr. Trump’s lawyers are unable to postpone the trial until the presidential race is decided, they hope to push it until the heart of the election campaign, in August or September.
That would present Judge Chutkan with a difficult decision: whether to hold the trial at a time when Mr. Trump might be away holding rallies and meeting with voters and enduring what are sure to be his vociferous complaints or make the decision himself to delay the trial after the trial. is the race over?
Mr Smith urged the judges to act quickly.
He asked the court to use an unusual procedure to override the appeals court, “certiorari before judgment.” It has been used in cases involving national crises, such as President Richard M. Nixon’s refusal to turn over tapes to a special prosecutor or President Harry S. Truman’s seizure of the steel industry.
The procedure was rare. Before 2019, the court had not used it for 15 years, according to compiled statistics by Stephen Vladeck, professor of law at the University of Texas at Austin. By the end of last year, he found, the court had used it 19 times since then.
Recent examples in which the court has bypassed appeals courts include cases on abortion, affirmative action and student debt cancellation.
A spokesman for Mr. Trump’s campaign called Mr. Smith’s request a «Hail Mary» attempt to gain access to the Supreme Court and «bypass the appeals process.»
Derek Muller, a law professor at Notre Dame, said the procedure remains unusual.
“It’s always a long shot 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 that the slow appeal process could interfere with the trial date and move even closer to Election Day. It seems unlikely that this will convince 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 repeatedly in the election interference case: that the public itself, not just the defendant, Mr. Trump, has a right fundamental to a speedy trial.
As in the Nixon tapes case, Mr. Smith wrote that «the circumstances warrant an expedited proceeding,» adding: «The public importance of the issues, the imminence of the scheduled trial date and the need for resolution rapid and definitive determination of the defendant’s immunity claims. counsel for expedited review by this court at this time.
Mr. Smith asked the Supreme Court to consider a question it had never addressed before: whether the Constitution gives the president immunity from criminal prosecution.
Mr. Smith acknowledged that the Supreme Court said in 1982 that former presidents enjoyed some special protections, at least in civil suits — those brought by private litigants seeking money — and that the Department of Justice Justice has long held the view that sitting presidents cannot be indicted.
“But these principles cannot be extended to provide the absolute protection from criminal liability that respondent, a former president, asserts,” Mr. Smith wrote. “Neither the separation of powers nor the respondent’s acquittal in an indictment proceeding places him above the reach of federal criminal law. Like other citizens, he is responsible for his criminal behavior.
Mr. Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. That complaint was filed 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 ruled, Nixon had been out of office for several years.
By 5 votes to 4, the judges ruled in favor of Nixon. “Given the special nature of the President’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we believe it is appropriate to recognize absolute presidential immunity in matter of liability for damages for acts committed within the “external perimeter” of power. his official responsibility.
Other Supreme Court precedents appear 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 while he was in office, ignoring concerns that it would distract him from his official responsibilities. It was also a civil matter.
And most recently, the Supreme Court ruled 7-2 in Trump v. Vance in 2020 that Mr. Trump did not have the absolute right to block the disclosure 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 criminal proceedings,” Chief Justice John G. Roberts Jr. wrote on behalf of the majority.