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

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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.

Later Monday, the Supreme Court said it will expedite consideration of Smith’s petition to rule on the question of whether Trump deserves immunity. Trump has until December 20 to file a response.

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

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 he goes to trial, which is scheduled for March.

“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.”

Smith wanted action by December 18; court could act remotely

Smith asked the Supreme Court to direct the Trump team to respond to this petition for certiorari before judgment (that is, review before appellate court action) on or before December 18. If the justices are so inclined, the court would issue an order to that effect, and it likely would do it quickly so that Trump’s lawyers have sufficient time to craft their response and meet that December 18 deadline. (The court could set its own timetable, too, of course.)

The Supreme Court last met in a private conference on Friday, and its next scheduled private in-person session is not until January 5.

But the Smith request can be readily handled through a telephone conference and circulated memos. Unlike for cases that come up through the regular appeals process, cert before judgment usually takes five, not four, votes.

As part of his request for expedited consideration, Smith has said the government would waive the usual 14-day waiting period for reply briefs, so that the petition and response could be distributed to the nine justices immediately. That would allow the court to begin considering this case during that week of December 18.

If the court then grants the petition, Smith asks that the parties exchange and file opening briefs 14 days after the case is granted.

Any subsequent responses would be due seven days later. (Smith also suggests that any amicus briefs be submitted when the parties’ opening briefs are due.)

Smith’s team on Monday also asked the DC Circuit appeals court to expedite its review of the immunity matter, so that the case can be quickly appealed to the high court under the regular appeals process if the justices don’t agree to immediately hear the case.

The Watergate tapes and skipping to the Supreme Court: ‘Big casino’

Smith’s appeal to the Supreme Court to quickly settle key issues in the Trump case has precedent in a Nixon Watergate-era case.

At the time, special prosecutor Leon Jaworski was attempting to get tapes from Nixon of his White House discussions about the Watergate break-in. But then, as today, the methodical nature of the federal court system and multiple appeals levels were delaying things, Bob Woodward and Carl Bernstein wrote in their book “The Final Days.”

Like Smith, Jaworski asked the Supreme Court to let him skip the DC US Circuit Court of Appeals and take up the issue immediately, otherwise a trial wouldn’t happen until the spring of 1975.

“The country had a criminal President. Delay was Nixon’s weapon. The courts were, by their nature, playing into the President’s hands,” Woodward and Bernstein wrote.

“It was risky. Very, very risky,” they added. “Supposed he filed a direct appeal to the Supreme Court, simply asking for a hearing. Suppose the justices said no. Suppose it was an angry no. Suppose it was a sarcastic reminder to Jaworski that there is a Court of Appeals for such a reason, and that no one receives special treatment. Not the President, and not an arrogant special prosecutor.”

The Supreme Court accepted Jaworski’s petition, ruled that Nixon did not have executive privilege to avoid the subpoena for the tapes. Within weeks of the ruling, Nixon resigned.

Jaworski’s spokesman, James Doyle, called the gambit “Big casino.”

This story has been updated with additional details.

CNN’s Joan Biskupic, Dan Berman and Kristen Holmes contributed to this report.

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