Trump asks Supreme Court to postpone hearing on immunity claim

Former President Donald J. Trump the Supreme Court urged Wednesday to postpone a decision on a key question in his federal prosecution on charges of conspiring to overturn the 2020 election: whether he has “absolute immunity” for actions he took as president.

The question, Trump’s letter said, must be “resolved in a cautious, measured manner – and not at breakneck speed.” He urged the justices not to “rush to decide the issues with reckless abandon.”

The request appeared to be part of Trump’s overall strategy to delay the trial in the case, which is set to start in March.

Last week, Special Prosecutor Jack Smith the Supreme Court asked to bypass a federal appeals court and agree to hear the immunity question quickly. Mr. Trump opposed that request on Wednesday, saying the importance of the case warranted careful and unhurried deliberation by the appeals court before the justices decide whether to take it up.

Mr. Trump’s letter said that Mr. Smith’s desire for expedited treatment was motivated by political considerations.

“He confuses the ‘public interest’ with the clear party interest in ensuring that President Trump will be subjected to a months-long criminal trial at the height of a presidential campaign in which he is the leading candidate and the only serious opponent of the current administration. ” the letter said. “The combination of a nearly three-year wait to present this case and the special counsel’s current demand for an extraordinary expedition, supported by the vaguest of justifications, creates a compelling inference of partisan motivation.”

The Supreme Court will likely decide shortly whether to hear the case. If so, the country could hear arguments in January and make a decision in the following weeks. If it dismisses the case for the time being, the appeals court will hear the question, after which the losing party will almost certainly return to the Supreme Court.

While working on a parallel track, Mr. Smith has also asked the U.S. Court of Appeals for the District of Columbia Circuit to consider the issue simultaneously. Last week, a three-judge panel of the court agreed to Mr. Smith’s request for an expedited hearing of the case and set an aggressive timeline for all written submissions to be filed by January 2. The court set oral arguments for January 2. 9.

Judge Tanya S. Chutkan of the Federal District Court in Washington has put the case on hold while the appeals court considers the immunity issue — though prosecutors have tried to push it forward, angering Mr. Trump’s lawyers.

The two sides agree that the immunity issue is extremely important, but they disagree on the timing. Mr. Smith has asked the justices to take swift action, relying on a relatively rare procedure called certiorari before judgment in an attempt to bypass the appeals court. Mr. Trump urged the justices to allow the appeal in the case to proceed in the usual manner.

The resolution of the immunity issue will be crucial in deciding whether the election interference case goes to trial before the 2024 election. It could also affect the timing of some of Trump’s other criminal cases, which depend largely on when the case goes before a jury in Washington.

Mr. Trump would like to delay the two federal trials he faces until after the race is over because, if he wins, he would have the power to have charges against him dropped.

The Supreme Court will soon face another question arising from the aftermath of the 2020 election. On Tuesday, the Colorado Supreme Court ruled that Mr. Trump is ineligible to vote in that state’s primary ballot, under a provision in the constitution that prohibits officials involved in insurrection from holding federal office. Mr. Trump has said he will appeal the ruling to the Supreme Court.

In his request to expedite proceedings in the immunity case, Mr. Smith relied on a 1974 precedent: United States against Nixonin which the Supreme Court unanimously – and quickly – ruled that President Richard M. Nixon, then still in office, must 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. .

Mr Smith noted that the Supreme Court acted with considerable speed in the case, using the “certiorari before judgment” procedure. The court granted review a week after the petition was filed, scheduled immediate arguments, and ruled sixteen days later.

Trump’s lawyers, on the other hand, largely relied on that Nixon vs. Fitzgerald, a 1982 decision that also involved Nixon. It was 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 Supreme Court acted, Nixon had already been out of office for several years.

By a vote of 5 to 4, the judges ruled in Nixon’s favor. “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.”

In December, Judge Chutkan rejected Trump’s arguments. “Whatever immunity a sitting president enjoys,” she wrote, “the United States has only one president at a time, and that position does not confer a lifetime ‘get out of jail free’ pass.”

She added that the 1982 decision did not address alleged criminal behavior.

“The rationale for immunizing a president’s controversial decisions from civil liability does not extend to protecting his criminality,” Judge Chutkan wrote.

The language in the 1982 decision supported the distinction between civil and criminal cases, she wrote.

Justice Powell’s majority opinion noted that “the court has previously recognized that there is a smaller public interest in lawsuits for civil damages than, for example, in criminal prosecutions.”

Chief Justice Burger underscored this point in a concurring opinion. “Immunity is limited to civil damages claims,” he wrote.

In 2020, the Supreme Court ruled 7-2 in Trump v. Vance that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the President, is categorically above the general duty to provide evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. said. wrote for the majority.

Alan Feuer reporting contributed.