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  • Writer's pictureThe San Juan Daily Star

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

Jack Smith, special counsel, during a press conference announcing the indictment of former President Donald Trump, in Washington on Aug. 1, 2023. (Doug Mills/The New York Times)

By Adam Liptak and Alan Feuer

Jack Smith, the special counsel prosecuting former President Donald Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court earlier this week to rule on Trump’s argument that he is immune from prosecution. The justices quickly agreed to fast-track the first phase of the case.

Smith’s request was unusual in two ways: He asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.

“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” Smith wrote.

On Monday evening, just hours after Smith filed papers in the Supreme Court, the justices granted his initial request: to put their consideration of whether to hear the case on a fast track. The court ordered Trump’s lawyers to file their response to the petition seeking review on an abbreviated schedule, by Dec. 20.

Smith’s filings represented a vigorous plea to keep the trial on track by cutting off an avenue by which Trump could cause delays.

A speedy decision by the justices is of the essence, Smith wrote, because Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the criminal trial. The proceeding is scheduled to begin March 4 in U.S. District Court in Washington.

Any significant delays could plunge the trial into the heart of the 2024 campaign season or push it past the election, when Trump could order the charges be dropped if he wins the presidency.

“The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.”

The trial judge, Tanya Chutkan, rejected Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while in office.

In her ruling two weeks ago, she condemned his attempts to “usurp the reins of government” and said there was nothing in the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.

Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also asked Chutkan to freeze the election interference case in its entirety until the appeal was resolved.

In his Supreme Court brief, Smith conceded that the election case could not be decided until after the appeal of the immunity issue was resolved. On Sunday, his team filed papers to Chutkan asking her to keep the March 4 trial date and saying she could still work on certain aspects of the case even as the appeal was being heard.

In what appeared to be an attempt to cover all bases, Smith’s team also filed a request to the appeals court in Washington on Monday to decide the immunity question quickly.

Winning the appeal of the immunity decision was only one of Trump’s goals in challenging Chutkan’s ruling. All along, he and his lawyers have had an alterative strategy: to delay the trial for as long as possible.

If the trial were put off until after the election and Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race was over would also mean that voters would not get to hear any of the evidence that prosecutors have collected about Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to elect him again in 2024.

Even if Trump’s lawyers are unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September.

That would present Chutkan with a difficult decision: Should she hold the trial at a time Trump could be out holding rallies and meeting voters and suffer what are sure to be his vociferous complaints or make the decision herself to delay the trial until after the race is over?

Smith urged the justices to move fast.

He asked the court to use an unusual procedure to leapfrog the appeals court, “certiorari before judgment.” It has been used in cases involving national crises, like President Richard Nixon’s refusal to turn over tape recordings to a special prosecutor or President Harry Truman’s seizure of the steel industry.

The procedure used to be rare. Before 2019, the court had not used it for 15 years, according to statistics compiled by Stephen Vladeck, a law professor at the University of Texas at Austin. As of late last year, he found, the court has used it 19 times since.

Among recent examples in which the court bypassed appeals courts were cases on abortion, affirmative action and student debt forgiveness.

A statement from Trump’s campaign called the request by Smith a “Hail Mary” attempt to get to the Supreme Court and “bypass the appellate process.”

Smith’s request was based on an argument that prosecutors have used several times in the election interference case: that the public itself, not just the defendant, Trump, has a fundamental right to a speedy trial.

As in the Nixon tapes case, Smith wrote, “the circumstances warrant expedited proceedings,” adding: “The public importance of the issues, the imminence of the scheduled trial date and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”

Smith asked the Supreme Court to consider a question it has never addressed before: whether the Constitution confers presidential immunity from criminal prosecution.

Smith acknowledged that the Supreme Court said in 1982 that former presidents enjoy some special protections, at least in civil suits — ones from private litigants seeking money — and that the Justice Department has long taken the view that sitting presidents cannot be indicted.

“But those principles cannot be extended to provide the absolute shield from criminal liability that respondent, a former president, asserts,” Smith wrote. “Neither the separation of powers nor respondent’s acquittal in impeachment proceedings lifts him above the reach of federal criminal law. Like other citizens, he is accountable for criminal conduct.”

Trump’s lawyers rely heavily on the 1982 decision, also involving Nixon, Nixon v. Fitzgerald. It was brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.

By a 5-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

Other Supreme Court precedents seem to be of no help to Trump.

In Clinton v. Jones in 1997, the court unanimously allowed a sexual harassment suit against President Bill Clinton to proceed while he was in office, discounting concerns that it would distract him from his official responsibilities. That was also a civil case.

And more recently, the Supreme Court ruled by a 7-2 vote in Trump v. Vance in 2020 that Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John Roberts wrote for the majority.

In separate court papers filed Monday, prosecutors working for Smith told Chutkan that they intended to call expert witnesses during the election interference trial who would testify about the movement Jan. 6, 2021, of Trump’s supporters from his incendiary speech near the White House — during which he urged them to “fight like hell” — to the Capitol.

Prosecutors said they also planned to call a witness who could talk about the specific times that day when Trump’s Twitter account was in use.

That could mean that the government will seek to provide the jury with the connections between Trump’s speech and his Twitter messages Jan. 6 and the movement of the mob toward the Capitol.

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