Trump asks Supreme Court to reject special counsel and stay out of immunity dispute for now

RENO, NEVADA - DECEMBER 17: Republican Presidential candidate former U.S. President Donald Trump delivers remarks during a campaign rally at the Reno-Sparks Convention Center on December 17, 2023 in Reno, Nevada. Former U.S. President Trump held a campaign rally as he battles to become the Republican Presidential nominee for the 2024 Presidential election.  (Photo by Justin Sullivan/Getty Images)

Former President Donald Trump at the Reno-Sparks Convention Center on December 17, 2023 in Reno, Nevada.Justin Sullivan/Getty ImagesCNN — 

Donald Trump opposes the special counsel’s request for the Supreme Court to decide right now whether he has any immunity from federal prosecution for alleged crimes he committed while in office – a question that must be settled before the trial, which is currently scheduled for March 4.

Special counsel Jack Smith asked the high court last week to review a lower-court ruling that Trump, as a former president, is not immune from the election subversion criminal case. Smith in his appeal to the justices asked them to take the rare step of reviewing the issue before a federal appeals court in Washington, DC, weighs in.


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But Trump, whose legal strategy in the case so far has largely revolved around attempts to delay the proceedings, told the justices in court papers Wednesday that Smith should not be able to leapfrog over the US Court of Appeals for the DC Circuit to resolve the critical issue. His filing Wednesday underscores that strategy, with his attorneys stressing what they see as a need to slow the pace of his litigation over certain key issues.

“The Special Counsel urges this Court to bypass those ordinary procedures, including the longstanding preference for prior consideration by at least one court of appeals, and rush to decide the issues with reckless abandon. The Court should decline that invitation at this time, for several reasons,” attorneys for Trump wrote.

With Trump’s filing now in, the justices could announce at any time whether they will hear the case. Even if they decline to hear it before the DC Circuit weighs in, it’s likely that the case will come before them again soon, as the appeals court has said it will expedite its review of the matter.

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“Not surprisingly, former President Trump’s opposition focuses on the timing of the Court’s review, and not the inevitability of having the court resolve whether he is immune from criminal prosecution eventually,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“Leaving aside how transparently self-serving a delay would be, it also rather ignores how much more often the Supreme Court has been utilizing this kind of expedited review in recent years – 19 times since February 2019 alone, including five at the request of then-President Trump,” he added. “Ultimately, it really just comes down to whether the justices want to decide the issue now, or two months from now after the court of appeals has ruled.”

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People walk past the US Supreme Court in Washington, DC on November 13, 2023. The US Supreme Court unveiled an ethics code following a series of scandals over lavish gifts and luxury vacations received by some of its justices. The nine members of the nation's highest court are the only federal judges not explicitly subject to ethical oversight, and pressure has been mounting from Democrats in the Senate for them to adopt a code of conduct. (Photo by Mandel NGAN / AFP) (Photo by MANDEL NGAN/AFP via Getty Images)

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Trump’s attorneys noted in their filing that the appeals court “has already granted highly expedited review” of the issue, saying that keeping with the ordinary appeals process “will allow the D.C. Circuit to address this appeal in the first instance, thus granting this Court the benefit of an appellate court’s prior consideration of these historic topics and performing the traditional winnowing function that this Court has long preferred.”

Speed is important, but not more important than the result, Trump’s team argues.

“The fact that this case arises in the vortex of political dispute warrants caution, not haste,” Trump attorney’s wrote.

“(I)mportance does not automatically necessitate speed,” they added. “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.”

Trump’s team had asked the appeals court earlier this month to examine the immunity ruling issued by district Judge Tanya Chutkan, who is overseeing his criminal case. Chutkan last week temporarily paused all procedural deadlines in the case while the appeal plays out.

In their request last week, prosecutors also asked the court to decide whether Trump is protected by double jeopardy. Defense lawyers have asserted that because Trump was acquitted by the Senate during his impeachment trial he cannot be criminally tried for the same alleged actions.

“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’s team wrote in their petition to the Supreme Court.

The filing continues, “respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”

This story has been updated with additional details.

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