Former President Donald Trump on Monday asked the Supreme Court to step into the charged dispute over whether he may claim immunity from prosecution, once again pressing the nine justices to resolve a question that could undermine his campaign for a second term.
Trump asked the Supreme Court to temporarily block a scathing and unanimous decision from the DC Circuit handed down last week that flatly rejected his claims of immunity from election subversion charges brought by special counsel Jack Smith.
“Conducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden,” Trump’s attorneys wrote in their request.
The DC Circuit’s ruling “threatens immediate irreparable injury to the First Amendment interests of President Trump and tens of millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots in November.”
The emergency filing instantly shoves the Supreme Court into the unusual position of having to juggle two politically fraught matters involving the front-runner for the Republican presidential nomination. Four days ago, the court heard a historic argument over whether Trump should be disqualified from the ballot for his actions on January 6, 2021.
The special counsel’s office has until February 20 to respond, but Smith – who is eager to speed up the proceedings – is likely to file much sooner.
How the Supreme Court acts on Trump’s request will have huge influence on whether – and how quickly – the former president will be put on trial for criminal allegations as he seeks the Republican nomination and presidency again.
Trump took the unusual step of saying he might seek to two avenues to appeal the earlier decision: An appeal to the Supreme Court and, potentially, a separate rehearing before the full DC Circuit. That move underscored Trump’s unusual position in a case where he was incentivized to file at the Supreme Court but also wants to preserve his ability to keep the immunity question before the appeals court.
“Former President Trump is making it rather clear that his goal is to stretch out these proceedings as much as possible,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.
While that won’t necessarily stop the justices from treating the filing as an appeal, “it underscores Trump’s unambiguous endgame here, which is to play out the string for as long as the courts will let him,” Vladeck added.
A panel of three DC Circuit judges set an aggressive timeline for Trump to appeal, nudging him directly to the Supreme Court and effectively requiring him to make his request by Monday. A key part of Trump’s legal strategy has been to delay his criminal cases until after the 2024 election. The fight over Trump’s immunity had already prompted US District Judge Tanya Chutkan to postpone a trial date previously set for March 4.
Chief Justice John Roberts, who handles emergency appeals from the DC Circuit, will likely set out a schedule quickly that will offer clues about the timing. Smith, eager to avoid further delay in starting a trial, is expected to push for a quick resolution.
Generally, it takes the votes of five justices to grant a stay.
At issue is a striking 57-page unanimous opinion from the DC Circuit on Tuesday that allowed Trump to face charges for actions he took while in office and brushed aside his claims that former presidents are immune from such prosecution.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter,” the court wrote. “Former President Trump lacked any lawful discretionary authority to defy federal criminal law and he is answerable in court for his conduct.”
Broadly, Trump argued in court that presidents might be hesitant to act if they were concerned about the prospect of criminal charges after they left office. His criminal indictment in the 2020 election interference probe, if allowed to stand, would have a “chilling effect” on future administrations, he said.
But US Circuit Judges Karen LeCraft Henderson, Florence Pan and J. Michelle Childs rejected all of Trump’s arguments that those principles conferred sweeping protections to a former president.
The judges were clear that the allegations against Trump are serious and left no question they believe the charges can be prosecuted. The panel repeatedly eviscerated Trump’s alleged behavior after the 2020 presidential election as unpresidential and constituting an assault on American institutions.
The case has already made its way to the Supreme Court once before. In December, the justices rejected a request from Smith to leapfrog the DC Circuit and decide the immunity question on an expedited basis. At that time, the court did not explain its reasoning and there were no noted dissents.
Trump’s lawyers referenced the earlier decision in the very first line of their brief, quoting the renowned late Yankees catcher Yogi Berra.
“This application is ‘déjà vu all over again,’” Trump’s attorneys wrote.
During more than two hours of oral arguments Thursday in the separate ballot case, most of the justices appeared willing to side with Trump on the question of whether he can appear on the ballot or if his actions on January 6 made him ineligible under the 14th Amendment’s “insurrectionist ban.” The court may have to decide how it wants to handle the former president’s immunity claim at the same time it is drafting an opinion in the ballot case.
Together, the cases have thrust the court into the middle of this year’s presidential election in a way it has largely managed to avoid since its decision in Bush v. Gore effectively decided the 2000 election between former President George W. Bush and former Vice President Al Gore.
This story has been updated with additional details.
