Trump asks the Supreme Court for absolute immunity from election charges

Former President Donald J. Trump the Supreme Court urged Tuesday to rule that he is absolutely immune from criminal charges stemming from his efforts to undermine the 2020 election.

“The President cannot function, and the Presidency itself cannot maintain its vital independence,” the letter said, “if the President faces criminal charges for official acts as soon as he leaves office.”

The letter, Trump’s most significant submission to the justices before the case is heard on April 25, continued to push for an expansive understanding of presidential immunity, an understanding that the report said was required by the structure of the Constitution itself.

“The issue of a former president’s criminal immunity raises serious constitutional questions that go to the heart of the separation of powers,” the letter said.

Legal experts said Trump was unlikely to prevail, but added that how and when the court rejects his arguments will essentially determine if and when Trump’s trial, which had been scheduled to begin on March 4, will continue.

When the Supreme Court agreed to hear the case last month, it set a so-called accelerated timetable. But it did not move particularly quickly and culminated in oral arguments some seven weeks later, on April 25. That delay marked an important partial victory for Mr. Trump.

Even if the court were to then move with considerable speed and issue a categorical decision against Mr. Trump within a month, the trial would most likely not begin until the fall, well into the heart of the presidential campaign. If the court does not rule until the end of June or sends the case back to the lower courts for further investigation into the scope of any immunity, the trial cannot take place until after the elections.

If Mr. Trump wins the election, he could order the Justice Department to drop the charges.

When the Supreme Court agreed to hear the case, it said it would decide this question: “Whether, and if so, to what extent a former president enjoys presidential immunity from criminal prosecution for conduct incidental to official acts while in office to go.”

That sentence has been scrutinized. On the one hand, Mr. Trump’s argument that his acquittal at his second impeachment trial, on charges of incitement of insurrection, blocked any prosecution on similar charges appeared to be ignored. (Fifty-seven senators voted against him, ten short of the two-thirds majority needed to convict.)

On the other hand, it seemed to leave open the possibility that the court would distinguish – or ask lower courts to do so – between official acts and private acts.

Mr. Trump was sharply critical of a ruling by a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, which unanimously rejected his argument that he might not be prosecuted for actions he took while in office.

The appeals court panel, made up of one Republican and two Democratic appointees, said Trump has become an ordinary citizen in the eyes of the criminal law after leaving office.

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

When the case was argued before the appeals court, a lawyer for Mr. Trump argued that former presidents are absolutely immune from prosecution, even for assassinations they ordered while in office.

In the new letter, Mr. Trump’s lawyers said the court should be wary of approving prosecutions of former presidents. “Criminal prosecutions pose a deadly threat to the independence of the presidency,” they wrote, adding that a contrary ruling could lead to the prosecution of President Biden.

“Is President Biden destroying our southern border and undermining our national security abroad for unlawful election purposes?” the boy asked.

Jack Smith, the special counsel who prosecuted Mr. Trump, elaborated on his arguments a short filed at an earlier stage of the proceedings, citing its attempts to undermine democracy.

If Trump’s “radical claim were accepted,” Smith wrote, “it would upend the understanding of presidential responsibility that has prevailed throughout history while undermining democracy and the rule of law—especially when, as here, a former president would be accused of committing crimes to remain in power despite losing an election, thereby attempting to undermine constitutional procedures for the transfer of power and disenfranchising millions of voters.”

Mr. Smith added that there is no reason to fear prosecutions that would prevent other presidents from taking decisive action.

“That dystopian vision runs counter to the checks and balances built into our institutions and the framework of the Constitution,” Mr. Smith wrote.