Donald Trump on Monday asked the Supreme Court to block a lower-court ruling that he can be criminally prosecuted for his efforts to overturn the 2020 election results, insisting that presidents are shielded from prosecution and that a trial would “radically disrupt” his reelection bid.
If a president can be criminally charged for actions taken while in office, Trump’s lawyers warned, “such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination.” They added: “Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.”
It was the second time in less than a week that the leading Republican presidential candidate turned to the nation’s highest court to intervene in an unprecedented legal question that could shape his political future, in this case explicitly requesting that the Supreme Court keep his criminal trial on hold to allow his political campaign to move forward unimpeded. At oral argument in a separate case on Thursday, the justices seemed inclined to reverse a ruling from Colorado’s top court that Trump should be barred from the ballot because of his conduct around the Jan. 6, 2021, attack on the U.S. Capitol.
Monday’s filing asks the justices to temporarily suspend — pending a formal appeal to the Supreme Court — the sweeping rejection by the U.S. Court of Appeals for the D.C. Circuit of Trump’s claim that he is shielded from prosecution for actions he took while in office.
It came on the same day that Trump attended a court hearing in Florida in a separate criminal case, in which he faces federal charges of mishandling classified documents and obstructing government efforts to retrieve them. In Georgia, a different hearing addressed allegations of misconduct against a state-level prosecutor who has charged Trump with obstructing the 2020 election results there.
In all, Trump faces 91 charges from four different indictments. He has denied all wrongdoing.
Forcing Trump into a months-long criminal trial, his lawyers said in their Monday filing to the Supreme Court, effectively sidelines him from campaigning, undermines the First Amendment rights of American voters “whether they support him or not, and threatens to tarnish the federal courts with the appearance of partisanship.”
The request gives the justices a potentially key role in determining whether and when Trump, who is closing in on the Republican nomination, will face a federal criminal trial in Washington. U.S. District Judge Tanya S. Chutkan, who is presiding over the case, had paused pre-trial proceedings while the appeal was pending and postponed a scheduled March 4 trial date until the appeal is resolved.
Chief Justice John G. Roberts Jr., in his role overseeing cases that originate in the D.C. Circuit, is likely to ask for a quick response from federal prosecutors before the justices rule on Trump’s request.
The 57-page D.C. Circuit opinion delivered last week was a forceful and unanimous rebuke from an appeals court panel with two judges nominated by Biden, a Democrat, and one nominated by Republican George H. W. Bush. “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,” the judges wrote.
They said trial preparations could resume in the D.C. case unless Trump asked the Supreme Court to pause the proceedings by Feb. 12, giving the former president little choice but to go directly to the justices instead of seeking a review from the full appeals court.
As they decide whether to grant Trump’s request to keep the proceedings on hold, the justices are also likely to consider whether to schedule the immunity issue for argument before the Supreme Court’s term ends in late June or early July. The justices could deny Trump’s request and allow the D.C. Circuit’s ruling that Trump can be prosecuted to stand, clearing the way for trial proceedings to resume immediately.
The votes of five of nine justices are required to keep the D.C. Circuit ruling on hold and the trial proceedings paused. It takes four justices to accept a case for review.
In his filing, Trump said the Supreme Court should not expedite review of his case and instead allow him to first seek rehearing by a full complement of D.C. Circuit judges.
“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,” said the filing from his legal team, led by attorney D. John Sauer.
Trump’s attorneys also objected to the appeals court’s order that he take the case to the Supreme Court in just four business days or risk having trial proceedings restart. They called the timeline an “unprecedented and unacceptable departure from ordinary appellate procedures.”
A spokesman for Special Counsel Jack Smith, who earlier had asked the Supreme Court to expedite the case as a matter of public importance, declined to comment.
Some legal experts say there is good reason to think at least four justices will vote to take Trump’s immunity appeal; he is the first former president to be charged with a crime, and the justices may want to have the final word on such a significant issue as whether he is shielded from prosecution.
If the high court takes the case and does not expedite review, that would further delay Trump’s D.C. trial — a key element in his legal strategy.
“Everyone knows that’s been Trump’s goal,” Fred Wertheimer, president of Democracy 21, said during a panel discussion last week that focused on the former president’s legal troubles. “If he can drag this on until after the election, and if he wins, he will quickly kill this case.”
Even though the immunity case and questions about Trump’s ballot eligibility are distinct, legal observers have suggested the justices may seek a compromise when it comes to resolving the matters involving the former president. After oral argument in the Colorado case, Richard Hasen, a UCLA law professor, said a “grand bargain” appears to be emerging.
Hasen characterized Trump’s immunity claims as “exceptionally weak” and suggested the court could both restore Trump to the ballot and force him to face trial.
“Together, these decisions let the voters decide if Trump really is disqualified from serving as president,” Hasen wrote for Slate, adding that it would be a “nice Kumbaya moment” for the court.
The D.C. Circuit upheld Chutkan’s Dec. 1 ruling rejecting Trump’s novel claim that former presidents are immune from prosecution, at least for actions related to their official duties, unless first impeached and convicted by Congress.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
The judges pointed out that other former presidents believed themselves vulnerable to prosecution. Gerald Ford pardoned Richard Nixon “for all offenses” he “committed or may have committed” in office.
During Trump’s second impeachment proceedings in the House after the Jan. 6 attack, his lawyers acknowledged that he could be criminally charged even if acquitted by the Senate.
Perry Stein contributed to this report.
