By Adam Liptak and Abbie Vansickle
Former President Donald Trump asked the Supreme Court on Monday to pause an appeals court’s ruling rejecting his claim that he is absolutely immune from criminal charges based on his attempts to subvert the 2020 election.
Unless the justices issue a stay while they consider whether to hear his promised appeal, proceedings in the criminal trial, which have been on hold, will resume.
The filing was Trump’s last-ditch effort to press his claim of total immunity, which has been rejected by two lower courts. The Supreme Court is now poised to determine whether and how fast his federal trial on charges that he tried to subvert the 2020 election will proceed. Unless the justices move quickly, the trial could be pushed into the heart of the 2024 campaign, or even past the election.
Trump’s filing came after a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit unanimously rejected Trump’s argument that he may not be prosecuted for actions he took while in office.
Trump’s lawyers urged the justices to put that ruling on hold and then to move forward at a deliberate pace.
“President Trump’s claim that presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex and momentous question that warrants careful consideration on appeal,” Trump’s application said.
The appeals court panel, made up of one Republican appointee and two Democratic ones, said Trump became an ordinary citizen in the eyes of the criminal law after leaving office.
“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 new filing said the panel and the trial judge had gone astray in rejecting Trump’s arguments.
“This is a stunning breach of precedent and historical norms,” Trump’s application said. “In 234 years of American history, no president was ever prosecuted for his official acts. Nor should they be.”
The panel had limited Trump’s litigation options, saying that the case would be returned to the trial court for further proceedings unless he sought a stay from the Supreme Court by Monday. Asking for review from the full appeals court, the panel said, would not stop the clock.
Trump’s filing asked the justices to restore that interim option, saying they should pause the panel’s decision while he asks the full appeals court to rehear its decision “in the ordinary course before seeking (if necessary) this court’s review.” If the Supreme Court grants that request, it will slow matters down considerably.
The trial had been set to start March 4, but Judge Tanya Chutkan has removed it from her calendar and it is not clear when it will be rescheduled. Much will depend on how fast the justices act.
The Supreme Court has already had one encounter with the case, turning away an unusual request in December from Jack Smith, the special counsel prosecuting Trump. Smith had asked the justices to bypass the appeals court and decide the immunity issue themselves without delay.
Smith urged the justices to move fast.
“The United States recognizes that this is an extraordinary request,” Smith added. “This is an extraordinary case.”
The justices rejected the request without comment or noted dissent, apparently content to let the appeals court have the first crack at the case. The question now is whether the Supreme Court will want the last word.
It has several options. It could deny a stay, which would restart the trial. It could deny a petition seeking review, which would effectively reject Trump’s immunity argument and let the appeals court’s ruling stand.
It could hear his appeal on a fast track, as it is doing in a separate case on Trump’s eligibility to hold office. Or it could hear the case on the usual schedule, which would most likely delay any trial past the election.
In Monday’s filing, Trump’s lawyers asked for an extended delay. “Conducting a monthslong criminal trial of President Trump at the height of election season,” it said, “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.”
When the case was argued in the appeals court, a lawyer for Trump argued that former presidents are absolutely immune from prosecution even for murders they ordered while in office. Monday’s filing did not retreat from that position but accused the panel of both overlooking historical analogies and of being unrealistic.
“The panel opinion ignores the long history of real-world examples of presidents engaging in actual behavior that political opponents viewed as egregious and ‘criminal,’” it said, mentioning the Iran-Contra scandal, asserted misuse of the president’s pardon power and what it called “President Biden’s egregious mismanagement of the United States’ border security.”
As for the “a hypothetical president corruptly ordering the assassination of political rivals through ‘SEAL Team 6,’” the application said, referring to a question during the appellate argument, “the panel fretted about lurid hypotheticals that have never occurred in 234 years of history, almost certainly never will occur and would virtually certainly result in impeachment and Senate conviction (thus authorizing criminal prosecution) if they did occur.”
The filing added, “Such hypotheticals provide fodder for histrionic media coverage, but they are a poor substitute for legal and historical analysis.”
In earlier cases on presidential immunity, the court has weighed in, establishing precedents pointing in opposite directions. Two of them involved President Richard Nixon.
In 1974, in United States v. Nixon, the court ruled that Nixon, then still in office, had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.
Eight years later, in Nixon v. Fitzgerald, the court voted 5-4 in favor of Nixon in a civil case 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 court acted, Nixon had been out of office for several years.
The appeals court panel in Trump’s case gave more weight to the first decision, which involved criminal rather than civil proceedings.
Trump’s application warned of pernicious consequences for later presidents if Trump’s claim to immunity was rejected.
“If the prosecution of a president is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination,” the filing said, adding, “Without immunity from criminal prosecution, the presidency as we know it will cease to exist.”