TRUMP ASKS COURT TO PUT OFF CASE
Special counsel has urged justices to rule soon on immunity
Former President Donald Trump urged the Supreme Court on Wednesday to put off a decision on a crucial question in his federal prosecution on charges of plotting to overturn the 2020 election: whether he has “absolute immunity” for actions he took as president.
The question, Trump’s brief said, should be “resolved in a cautious, deliberative manner — not at breakneck speed.” He urged the justices not to “rush to decide the issues with reckless abandon.”
The request appeared to be part of Trump’s general strategy of trying to delay the trial in the case, which is scheduled to start March 4. That date, Trump’s lawyers wrote, “has no talismanic significance.”
Last week, Jack Smith, the special counsel, asked the Supreme Court to bypass a federal appeals court and agree to hear the immunity question on a quick schedule. Trump opposed that request Wednesday, saying the importance of the matter warranted careful and unhurried deliberation by the appeals court before the justices decide whether to take it up.
Trump’s brief said Smith’s desire for expedited treatment was driven by political considerations.
“He confuses the ‘public interest’ with the manifest partisan interest in ensuring that President Trump will be subjected to a monthslong criminal trial at the height of a presidential campaign where he is the leading candidate and the only serious opponent of the current administration,” the brief said. “The combination of an almost three-year wait to bring this case and the special counsel’s current demand for extraordinary expedition, supported by the vaguest of justifications, creates a compelling inference of partisan motivation.”
The Supreme Court is likely to decide whether to hear the case in short order. If it does, it could hear arguments in January and issue a decision in the following weeks. If it turns away the case for now, the appeals court will consider the question, after which the losing side is almost certain to return to the Supreme Court.
Working on a parallel track, Smith has also asked the U.S. Court of Appeals for the District of Columbia Circuit to consider the issue at the same time. Last week, a three-judge panel of the court agreed with Smith’s request for an expedited schedule and laid out an aggressive timeline for all written filings to be submitted by Jan. 2. The court set oral arguments for Jan. 9.
Judge Tanya Chutkan of the U.S. District Court in Washington has put the case on hold while the appeals court considers the immunity question — although prosecutors have tried to nudge it forward, angering Trump’s lawyers.
The two sides agree that the immunity issue is of surpassing importance, but they differ on timing. Smith has asked the justices to move quickly, relying on a relatively rare procedure, called “certiorari before judgment,” in an attempt to leapfrog the appeals court. Trump urged the justices to allow appeals in the case to proceed in the usual way.
“Importance does not automatically necessitate speed,” his brief read. “If anything, the opposite is usually true. Novel, complex, sensitive and historic issues — such as the existence of presidential immunity from criminal prosecution for official acts — call for more careful deliberation, not less.”
The resolution of the immunity issue will be crucial in deciding whether the election interference case goes to trial before the 2024 election. It could also affect the timing of some of Trump’s other criminal cases, which depend in large part on when the case in Washington goes in front of a jury.
Trump would like to delay the two federal trials he is facing until after the race is over. If he wins, he would have the power to order the charges against him dropped.
The Supreme Court will soon confront a different question arising from the aftermath of the 2020 election. On Tuesday, the Colorado Supreme Court ruled that Trump is not eligible to be on the primary ballot in that state under a provision of the Constitution that bars officials who have engaged in insurrection from holding office. Trump has said he will appeal that ruling to the Supreme Court.