Trump is facing a Supreme Court deadline for his claim of absolute immunity

Former President Donald J. Trump is expected to make a last-ditch effort at the Supreme Court on Monday to bolster his claim of total immunity from criminal prosecution.

When a federal appeals court dismissed the claim last week, the claim was dismissed temporarily interrupted its ruling and says it will remand the case back to the trial court on Monday, allowing Judge Tanya S. Chutkan to resume proceedings in the case that was frozen during the appeal. But the appeals court added that it would extend the pause until the Supreme Court rules – if Mr Trump asks the justices to intervene by submitting a request for a stay to them before Monday.

That makes it all but certain that Mr. Trump will file such a request in the coming hours, meaning the Supreme Court may soon be ready to determine whether and how quickly his federal trial on charges that he tried to undermine the 2020 election. will continue.

It has several options. It could refuse a delay, which would start the process over. It could grant a brief reprieve and then deny a petition for review, which would essentially reject Mr. Trump's immunity argument and leave the appeals court's ruling in place.

It could quickly hear his appeal, as it is doing in a separate case over Trump's fitness for office. Or it could hear the case on its usual schedule, which would likely delay any post-election trial.

In other words, timing is everything. Unless the justices act quickly, the lawsuit could end up in the heart of the 2024 campaign, or even beyond the election.

A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, in unanimously rejecting Mr. Trump's argument that he should not be prosecuted for actions he took while in office, found that he was an ordinary has become a citizen in the eyes of the criminal law after his term of office.

“For purposes of this criminal case, former President Trump has become citizen Trump, with all the defenses of any other criminal defendant,” the panel wrote in an unsigned opinion. “But any executive branch immunity that may have protected him while he served as The President no longer protects him from this prosecution.”

The panel, made up of one Republican and two Democratic appointees, also limited Mr. Trump's trial options, saying the case would be sent back to the court for further hearing unless he requests a stay from the Supreme Court by Monday. Requesting a review by the full appeals court would not stop the clock, the panel said.

The trial was scheduled to begin on March 4, but Judge Chutkan removed it from her calendar.

The Supreme Court has already dealt with the case once, in December rejecting an unusual request from Jack Smith, the special counsel prosecuting Mr. Trump. Mr Smith had asked the judges to bypass the appeal court and decide the immunity issue themselves without delay.

Mr Smith urged the judges to take swift action: “The public importance of the issues, the threat to the scheduled trial date and the need for prompt and final resolution by the defendant's counsel on immunity claims in favor of this court's expedited review at this time. ”

“The United States recognizes that this is an extraordinary request,” Mr. Smith added. “This is an extraordinary case.”

The justices denied the request without comment or noting dissent, apparently content to give the appeals court the first chance to consider the case. The question now is whether the Supreme Court wants to have the final say.

In previous presidential immunity cases, the court has gone to great lengths and set precedents that point in opposite directions. Two of these involved President Richard M. Nixon.

In 1974, op United States against Nixonthe court ruled that Nixon, then still in office, had to comply with a subpoena requesting recordings of his conversations in the Oval Office, dismissing his claims of executive privilege.

“Neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, alone, can in all circumstances sustain an absolute, unqualified presidential prerogative of immunity from judicial proceedings,” wrote Chief Justice Warren E. Burger. .

Eight years later, in Nixon vs. Fitzgeraldthe court voted 5-4 in Nixon's favor in a civil case brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the court took action, Nixon had already been out of office for several years.

“Given the special character of the constitutional office and functions of the President,” Justice Lewis F. Powell Jr. wrote for the majority, “we believe it is appropriate to recognize absolute presidential immunity from liability for damages for actions within the 'outer perimeter' of the country. his official responsibility.”

The appeals court panel in Mr. Trump's case gave more weight to the first decision, which was a criminal rather than civil proceeding.

“As the Nixon court explained” in the Oval Office tapes case, the panel wrote, “completely immunizing the president from the criminal process” would “breach the judiciary's primary constitutional duty to provide justice in criminal prosecutions.” ” to disturb.

The second decision, which arose from a civil suit, was less instructive, the panel wrote. “In considering the issue of presidential immunity,” the ruling said, “the Supreme Court has been careful to ensure that its rulings on civil liability do not spill over into criminal prosecution.”