Special Counsel Asks Supreme Court to Rule on Presidential Immunity in Trump Case

Justice Department special counsel Jack Smith filed motions to the Supreme Court and a federal appeals court in Washington on Monday to settle the question over presidential immunity in an effort to keep former President Donald Trump’s criminal trial for election interference on track for March 2024.

“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” Smith wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case.”

“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,” he wrote.

Earlier this month, Judge Tanya Chutkan, who is overseeing the 2020 election interference case, denied Trump’s motion to dismiss the indictment on presidential immunity and constitutional grounds.

“Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office,” wrote Chutkan in her opinion.

Her denial came on the same day as a similar rejection from a federal appeals court, which ruled that Trump’s speech and actions as a candidate for president are not necessarily protected against civil liability by presidential immunity.

The pair of rulings gutted Trump’s long-time and oft-cited excuse that nearly all speech by a president is protected from lawsuits as well as his evolving legal strategy for the unprecedented federal criminal trial set to get underway on March 4, which largely rests on the idea that his efforts were connected to official presidential duties.

Trump and his defense team have since filed an appeal that asks for the case to be put on hold until the D.C. court of appeals reaches a decision. Smith, in an attempt to keep the trial on schedule, filed to the Supreme Court in addition to the court of appeals on Monday, underscoring the importance of such a question finally being put to rest.

To be sure, the question of executive immunity in cases of criminal prosecution for a president has never been settled, and Trump’s interpretation of it is far from universally agreed upon. Judges and justices have weighed in over the years on executive immunity as it relates to civil matters, with the Supreme Court concluding that the commander in chief has vast protection from liability for conduct even tangentially related to official duties. So the finding against Trump carried particular weight.

Part of Smith’s 81-page motion to the Supreme Court detailed in great length the 1974 case, United States v. Nixon, in which the high court ruled unanimously against Nixon’s attempt to block evidence from being used in a trial by claiming executive authority.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” Smith wrote. “Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”