Special counsel goes directly to Supreme Court to resolve whether Trump has immunity from prosecution

Originally Published: 11 DEC 23 12:42 ET Updated: 11 DEC 23 13:10 ET By Hannah Rabinowitz and Devan Cole, CNN

(CNN) — Special counsel Jack Smith on Monday asked the Supreme Court to decide whether Donald Trump has any immunity from criminal prosecution for alleged crimes he committed while in office – the first time that the high court will weigh in on the historic prosecution of the former president.

The extraordinary request is an attempt by Smith to keep the election subversion trial – currently scheduled for early March – on track. Smith is asking the Supreme Court to take the rare step of skipping a federal appeals court and quickly decide a fundamental issue of the case against Trump.

Smith’s team has asked the court to review district Judge’s Tanya Chutkan ruling that as a former president, Trump is not immune from the election subversion prosecution case brought in Washington DC. Lawyers for the former president have argued that Trump’s alleged actions over the 2020 election results were part of his official duties at the time and therefore he is protected by presidential immunity.

Prosecutors also asked the court to decide whether Trump is protected by double jeopardy. Defense lawyers have asserted that because Trump was acquitted by the Senate during his impeachment trial that he cannot be criminally tried for the same alleged actions.

If the Supreme Court were to take up the case, the issue of presidential immunity would skip being decided by an appeals court. Trump’s team had asked the appeals court last week to examine Chutkan’s ruling and also asked asked Chutkan to suspend all trial dates in the meantime.

The question about presidential protections that Trump hopes to use as part of his defense need to be settled before Trump goes to trial, which is currently scheduled for March 2024.

“Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024,” Smith’s team wrote. “It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected.”

The filing continues, “respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”

Invokes US v. Nixon

The special counsel’s team is pointing to a similar maneuver employed in US v. Nixon, the 1974 Supreme Court case in which the justices rejected then-President Richard Nixon’s claims of presidential privilege in a subpoena fight over Oval Office tapes. In that case, the high court moved quickly to resolve the matter so that one of the Watergate-era cases could proceed swiftly.

“Historically, the Supreme Court has rarely agreed to this kind of gambit – to take up an appeal before a federal court of appeals has had a chance to do so,” said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law.

“But not only has the Court shown far more willingness to expedite appeals since 2019, even before then, this was the exact kind of case in which it would have agreed to move quickly,” Vladeck added.

In their appeal to the Supreme Court, prosecutors with the special counsel wrote that “nothing could be more vital to our democracy” than holding a former president accountable if they break the law.

“A cornerstone of our constitutional order is that no person is above the law,” Smith’s team wrote. “The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”

In urging the justices to take up the matter now, prosecutors argued that the nature of the high-profile case warranted a departure from normal appellate procedure.

“If appellate review of the decision below were to proceed through the ordinary process in the court of appeals, the pace of review may not result in a final decision for many months; even if the decision arrives sooner, the timing of such a decision might prevent this Court from hearing and deciding the case this Term.”

This story has been updated with additional details.

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