Washington — The Supreme Court on Friday declined for now to take up a landmark case over whether former President Donald Trump is absolutely immune from prosecution for alleged crimes committed while he was in office, a move that allows the appeals process to play out first.
The court issued a one-line, unsigned order denying the request from special counsel Jack Smith: “The petition for a writ of certiorari before judgment is denied.” There were no noted dissents.
The Supreme Court’s decision Friday is a blow to Smith and his team of prosecutors, who have pushed the courts to move quickly to hold trials in the Washington case and the second prosecution in Florida before the presidential election swings into full gear. Trump’s attorneys, meanwhile, have urged the courts to delay the trials until after the election.
The special counsel’s office declined to comment on the court’s decision.
The appeals process
The high court’s rejection paves the way for the U.S. Court of Appeals for the District of Columbia Circuit to rule first on whether the former president can be prosecuted for allegedly attempting to thwart the transfer of presidential power after the 2020 presidential election. The move does not preclude the losing party — Trump or Smith — from seeking the Supreme Court’s review again after the appeals court makes its determination.
But it could impact the timing of the trial, which is set to begin March 4 in Washington, D.C., depending on how quickly proceedings in the appeals court play out. The D.C. case has been paused while Trump pursues his appeal, and whether the prosecution can move forward hinges on the outcome of the dispute over his immunity claim.
A three-judge panel on the appeals court is already moving with unusual speed to take up the matter, with arguments scheduled for Jan. 9. If the panel sides with Smith and finds Trump is not immune, the former president could then appeal that decision to either the full appeals court, or ask the Supreme Court to review the case at that point. Smith could do the same if the court sides with Trump. If the Supreme Court declines, the appellate court’s decision will stand. If the justices agree to take it up, they will have the final say. Smith’s prosecution will either be able to move forward, or Trump will be immune from prosecution for acts he committed while in office.
Each phase in the process will require a legal back-and-forth of new filings, potential oral arguments and time for the courts to craft their opinions. Even with the appeals court’s rapid timeline for reviewing the immunity issue, the trial date could still be pushed back if the matter isn’t resolved before March.
Trump’s immunity claim
The current dispute arrived at the nation’s highest court on the heels of a decision from U.S. District Judge Tanya Chutkan, who rejected arguments from Trump’s legal team that he is entitled to broad immunity from criminal prosecution for acts within the “outer perimeter” of his official duties.
In her Dec. 1 ruling, Chutkan found that the presidency “does not confer a lifelong ‘get-out-of-jail-free’ pass,” and said Trump may be subject to “federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”
Trump was indicted on four counts in early August related to an alleged scheme to thwart the peaceful transfer of presidential power after the 2020 presidential election. He pleaded not guilty to all charges.
The Supreme Court is separately considering a case challenging the reach of a law that has been used to charge more than 300 people for their alleged participation in the Jan. 6, 2021, attack on the U.S. Capitol, including Trump. A decision from the justices is expected by the end of June.
After Chutkan denied Trump’s request to dismiss the charges brought by Smith on immunity grounds, allowing the case to proceed, the former president asked the D.C. Circuit to review the decision. The appeals court scheduled arguments for Jan. 9. Once Trump filed his appeal, Smith turned to the Supreme Court and asked it to step in before the appeals court rules.
“A cornerstone of our constitutional order is that no person is above the law. The force of that principle is at its zenith where, as here, a grand jury has accused a former president of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor,” Smith wrote in his request to the justices. “Nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct.”
The special counsel argued that it is of “imperative public importance” that Trump’s claims of immunity be resolved by the Supreme Court and, if they are rejected, for his trial to proceed “as promptly as possible.” Smith has repeatedly said it’s in the public interest for the March trial to proceed on time.
Trump’s lawyers, however, had urged the Supreme Court not to decide the issue of his immunity until after the D.C. Circuit could examine the matter. They accused Smith of pursuing President Biden’s partisan interests.
“The Special Counsel’s extraordinary request, combined with its vague, threadbare justification, creates the compelling appearance of a partisan motivation: To ensure that President Trump — the leading Republican candidate for President, and the greatest electoral threat to President Biden — will face a months-long criminal trial at the height of his presidential campaign,” the former president’s legal team wrote.
They argued that in asking the Supreme Court to fast-track the case and leap-frog the appeals court, the special counsel was urging the justices to “rush to decide the issues with reckless abandon.”
“An erroneous denial of a claim of presidential immunity from criminal prosecution for official acts warrants this Court’s review — in due course,” lawyers John Sauer, John Lauro and Todd Blanche wrote. “Yet importance does not automatically necessitate speed.”
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