Trump asks U.S. Supreme Court to pause federal trial over presidential immunity question

WASHINGTON – Former President Donald Trump asked the U.S. Supreme Court on Monday to further delay his federal criminal trial on charges he attempted to subvert the 2020 election, contending his actions were protected by presidential immunity.

In a 40-page application to the Supreme Court late Monday, Trump and his attorneys asked the justices to pause pretrial activities in federal district court for the case brought by Special Counsel Jack Smith accusing Trump of lying to and encouraging supporters who turned violent on Jan. 6, 2021 and attacked the U.S. Capitol.

Trump’s application comes just days after the Supreme Court justices heard arguments in a separate case involving the former president, this time about whether Colorado could bar him from the 2024 presidential primary ballot because he violated the Constitution’s 14th Amendment. The justices met the argument with skepticism.

Trump, the front-runner for the 2024 Republican presidential nomination, plans to challenge a three-judge panel appeals court ruling last week that said he could not claim presidential immunity to escape the criminal charges accusing him of conspiring to overturn his loss in the 2020 presidential election.

Trump’s team said in the Monday application that they plan to appeal “en banc,” meaning to the full D.C. Circuit appeals court, and also to the U.S. Supreme Court, “if necessary,” Trump’s lawyers wrote.

Smith had asked the Supreme Court in December to fast-track Trump’s immunity question, essentially leapfrogging the federal appeals process, but the justices declined the request.

The brief cited Trump’s schedule ahead of November’s presidential election, saying a long trial would keep him off the campaign trail and deprive “tens of millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots.”

“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 — which appears to be the whole point of the Special Counsel’s persistent demands for expedition,” Trump’s lawyers said.

A majority of justices would have to vote to grant a stay for it to take effect.

Immunity argument

Trump is likely to win a high court case, his lawyers said Monday, because he was representing an essential aspect of presidential power. Allowing presidents to be prosecuted would create a constant threat of prosecution for every future president, making the job virtually unmanageable.

“This threat will hang like a millstone around every future President’s neck, distorting Presidential decisionmaking, undermining the President’s independence,” Trump’s attorneys wrote. “Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.”

All the allegations in the four-count indictment stemmed from actions Trump took in his official capacity as president as a good-faith effort to reverse widespread election fraud, the brief said.

Prosecutors say Trump knew there was not determinative voter fraud, but nonetheless pressured state officials, Department of Justice leaders, Vice President Mike Pence, and others to illegally use the claim to overturn the election results.

The pressure campaign eventually led to the deadly storming of the Capitol by Trump’s supporters on Jan. 6, 2021, according to prosecutors and the U.S. House committee that investigated the matter.

Shortly after he left office, the U.S. House impeached Trump for his role in the attack. But with only seven Republican senators joining all Democrats in voting to convict Trump, the former president was acquitted in a Senate trial.

That should also protect Trump from court prosecution under the principle of double jeopardy that says a person cannot be tried twice for the same crime, Trump’s lawyers argued to the Supreme Court.

Four of the Supreme Court’s nine justices would have to agree to hear the case. Trump appointed three of them.

Original trial date postponed

Although Trump has not succeeded in having the case thrown out over presidential immunity, the issue has gobbled up months of court time and delayed his trial.

U.S. District Judge Tanya S. Chutkan, who is the trial judge in the case, said last month she would postpone the original trial start date of March 4. She has not set a new date.

In October, Trump made a pretrial motion to throw out the charges based on his presidential immunity theory.

Chutkan denied the motion, and Trump appealed her decision to the D.C. Circuit.

A panel of the appeals court ruled last week to uphold Chutkan’s decision, and gave Trump until Monday to take the case to the Supreme Court.

In early January, Trump’s lawyer D. John Sauer argued before federal appeals judges Karen LeCraft Henderson, Florence Y. Pan and J. Michelle Childs that the former president has absolute immunity from criminal prosecution because presidents cannot be tried for “official acts” taken while in office.

When asked by the judges about hypothetical criminal acts including ordering the assassination of a political rival or selling military secrets, Sauer notably argued that if presidents are not impeached and convicted, they would be immune from criminal prosecution.

In the unanimous unsigned federal appeals opinion on Feb. 6, the judges dismissed Trump’s arguments as “unsupported by precedent, history or the text and structure of the Constitution.”

“We cannot accept former President Trump’s claim that a President has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” they wrote.

The three-judge federal appeals panel comprised appointees from both Democrat and Republican administrations — Henderson, appointed by George H.W. Bush, and both Pan and Childs were appointed by President Joe Biden.