UPDATE: Later Monday, the Court agreed to expedite a decision on whether to grant review of the immunity issues, and gave Trump’s team nine days to file a response. It could even act on the next step before Christmas.
Without waiting for a lower court to rule, the special January 6 prosecutor asked the Supreme Court on Monday to take on the basic constitutional issue of whether former President Donald Trump is immune to criminal charges, and urged the Justices to move speedily.
If the Court agrees to the prosecutor’s suggested schedule, it could hear the case as early as next month and decide it rapidly. The immunity issue has to be settled before a trial can start, and that is now scheduled to begin on March 4.
Special Counsel Jack L. Smith, leading the prosecution of Trump on four criminal charges based on his attempt to stay in power after losing the 2020 election, told the Cour that the dispute “presents a fundamental question at the heart of our democracy.”
That issue, the filing said, is “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.”
Making it clear that the prosecution team is trying hard to avoid any delay of Trump’s trial in March, the appeal was filed just ten days after U.S. District Judge Tanya S. Chutkan had rejected both of the former President’s immunity claims.
Trump has appealed her ruling to a federal appeals court, but Smith’s move on Monday seeks to bypass that tribunal and put the issue directly before the Supreme Court on an unusually expedited schedule.
The Court has full discretion about what to do with the case. If it chooses to bypass review at this point, that could endanger the schedule to start Trump’s trial in March before a jury in Washington, D.C. The longer such a trial is delayed, the more likely it would interfere directly with the unfolding of the 2024 presidential election campaign.
Besides this immunity case, the Court may soon be drawn into another major constitutional controversy over whether the Constitution disqualifies him from office because of his role in the January 6 events. That is pending in several cases in state courts, but one or more could reach the Supreme Court shortly.
Smith’s appeal on the immunity issue urged the Court to adopt a schedule similar to the one it followed when it ruled in 1974 that then-President Richard M. Nixon had to turn over to prosecutors tape recordings of 64 White House conversations about the Watergate scandal. In U.S. v. Nixon, the Court agreed to hear the case one week after it had arrived there, and heard and decided it over the next 54 days – far faster than usual.
Nixon was never charged with a crime, but the scandal and the Court ruling led to his resignation 15 days after he lost the case in the Court. He was then pardoned by his successor, President Gerald R. Ford.
That 1974 ruling dealt only with Nixon’s claim of “executive privilege” against being forced to turn over records of private White House conversations for use in criminal cases against some of his former aides.
Trump faces four criminal charges for his role in the violence on January 6 during an invasion of the Capitol that temporarily blocked the counting of electoral votes that would show that Trump had lost to President Joe Biden. Trump also faces more than 80 charges in other cases; those are not involved in this appeal by Smith, although the outcome would affect immunity claims by Trump in other cases.
The Supreme Court has never ruled that Presidents in office or after leaving the office are completely immune to criminal prosecution. In 1982, in another case involving former President Nixon, it ruled that former presidents have absolute immunity to being sued for any “official acts” taken while in office. It said that immunity extends to “all duties within the outer perimeter of his duties of office.”
Trump’s defense lawyers are trying to extend that precedent to give him total immunity against criminal charges, claiming that everything he did in his response to the 2020 election had been within the “outer perimeter” of his official duties.
Judge Chutkan rejected that argument. While she said the Constitution was silent on the point, she concluded that silence did not “reflect an understanding” that a former President possesses immunity from federal criminal prosecution. She wrote that a former President’s intention to commit a crime is not the kind of difficult decision that must be protected from being questioned later.
Trump’s second immunity claim is an unusual interpretation of the Constitution’s provision that Presidents can be removed from office by impeachment. In the waning days of his presidency, Trump was impeached by the House of Representatives for his role in the January 6 incident, but the Senate acquitted him in February 2021, after he had left office.
Borrowing from the guarantee in the Fifth Amendment against “double jeopardy” – that is, being tried twice for the same crime, his lawyers contend that his trial and acquittal on impeachment charges bars a later prosecution on criminal charges based on the same conduct.
In her ruling against that claim, Judge Chutkan found no basis for it in the Constitution’s wording or in U.S. history on that provision of the basic document.
Special Prosecutor Smith’s appeal argued that “a cornerstone of our constitutional order is that no person is above the law….Nothing could be more vital to our democracy than that a President who abuses the election system to remain in office is held accountable for his criminal conduct.”
Noting the Court’s 1982 decision on presidential immunity to civil lawsuits and the government’s policy that no President should be prosecuted while in office, Smith contended that neither of those principles should be extended to a President who has left office. “Like other citizens,” the appeal said, “he is accountable for criminal conduct.
The Court is expected to react promptly to the new filing.