Special counsel asks Supreme Court to decide whether Trump is immune from federal prosecution

Washington — Special counsel Jack Smith asked the Supreme Court on Monday to swiftly decide whether former President Donald Trump is absolutely immune from federal prosecution for crimes allegedly committed while he was in office.

In a request filed with the high court, Smith asked the justices to rule before a federal appeals court can weigh in on the matter. U.S. District Judge Tanya Chutkan, who is presiding over the case involving the 2020 presidential election, ruled earlier this month that Trump cannot be shielded from criminal prosecution after his presidency for alleged actions that occurred while he was in the White House.

The former president suggested in a filing with the district court that he intends to appeal Chutkan's ruling to the U.S. Court of Appeals for the District of Columbia Circuit. But the special counsel wrote in his request that the Supreme Court should settle the issue once and for all.

"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," Smith wrote. "Respondent's claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them."

The Supreme Court agreed later Monday to speed up consideration of Smith's request and directed Trump to submit a response to the petition by 4 p.m. on Dec. 20.

Trump's trial is expected to begin March 4, but he has asked the district court to pause the proceedings while he pursues his appeal. The former president is facing four counts for his alleged efforts to stop the transfer of presidential power after the 2020 election. He has pleaded not guilty to all charges.

"A cornerstone of our constitutional order is that no person is above the law. 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," Smith wrote. "Nothing could be more vital to our democracy than that a president who abuses the electoral system to remain in office is held accountable for criminal conduct."

The justices have no remaining closed-door conference meetings, where they discuss which cases to take up, scheduled before the end of the year. Their next conference is set for Jan. 5. While the justices could decide to act earlier than that, the court typically only considers emergency applications outside its normal schedule, and Smith's filing is not an emergency application. 

Still, the special counsel proposed the court give Trump until Dec. 18 to file a response to the request, after which the justices "would then be able to consider the petition, response, and any reply at the earliest time convenient to the court." 

Four justices are needed to approve a petition to take up a case.

Trump's immunity claim

Trump asked the district court in early October to toss out the charges brought by Smith, arguing in part that he has presidential immunity from prosecution for actions performed within the "outer perimeter" of his official responsibility.

While stipulating that the former president "emphatically denies the truth of any allegations in the indictment," Trump's lawyers argued that the actions underlying the charges against him were taken not just when he was a presidential candidate, but also the sitting president — a distinction that his legal team said shields him from prosecution.

Chutkan rejected Trump's attempt to dismiss the case on immunity grounds, allowing it to move forward. 

"Whatever immunities a sitting president may enjoy, the United States has only one chief executive at a time, and that position does not confer a lifelong 'get-out-of-jail-free' pass," she wrote.

The former president, Chutkan said, "may be subject to federal investigation, indictment, prosecution, conviction, and president for any criminal acts undertaken while in office."

Lawyers for Trump notified the district court last week that he would be appealing the order denying his motion to dismiss the case. Chutkan has not yet acted on his request to pause all of the proceedings, and federal prosecutors on Sunday urged her to reject his effort to do so.

The special counsel's argument

In his request to the Supreme Court, Smith wrote that Trump's assertion that he is entitled to absolute immunity from prosecution is unsupported by the Constitution's text, structure and history.  

While the Supreme Court has afforded civil immunity for a president's actions taken within the "outer perimeter" of his official responsibilities, and the Justice Department has long held that a sitting president cannot be indicted while in office, "those principles cannot be extended to provide the absolute shield from criminal liability," the special counsel said.

Smith is also asking the justices to consider Trump's argument that he is constitutionally protected from prosecution because he was impeached by the House — and acquitted by the Senate — for the same conduct alleged in the indictment, a claim that Chutkan also rejected.

The special counsel warned that if the case against Trump proceeds through the normal or an expedited appellate process, it's unclear whether the Supreme Court would be able to decide the immunity issues during its current term, which ends in late June. 

If the court agrees to hear the case, he asked the justices to set a schedule that would allow it to be resolved "as promptly as possible." If the court declines to review the dispute immediately, the special counsel requested the court consider postponing action until the D.C. Circuit issues its own decision.

"The United States recognizes that this is an extraordinary request. This is an extraordinary case," he said.

In response to Smith's filing later Monday, a statement from the Trump campaign called the special counsel "deranged" and said he is "try[ing] for a Hail Mary by racing to the Supreme Court and attempting to bypass the appellate process."

"As President Trump has said over and over again, this prosecution is completely politically motivated. There is absolutely no reason to rush this sham to trial except to injure President Trump and tens of millions of his supporters," the statement said. "President Trump will continue to fight for Justice and oppose these authoritarian tactics."

In addition to seeking review from the Supreme Court, Smith separately asked the D.C. Circuit to expedite Trump's appeal of the district court's order.

"To further the imperative public interest in a timely trial, the government seeks a full and final resolution of the defendant's claims — that he is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution where he was impeached but not convicted before the criminal proceedings begin — before the March 4, 2024 trial date," the special counsel wrote.

Though the Supreme Court rarely moves with the speed Smith is proposing, there is precedent for doing so. In the 1974 case involving then-President Richard Nixon and a subpoena for tape recordings issued during the Watergate investigation, the Supreme Court granted the government's request to resolve the dispute one week after it was filed, and issued a decision less than two months later.