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Former President Trump on Monday urged the Supreme Court to keep his federal election subversion criminal trial on hold as he appeals a ruling that he doesn’t have immunity from the charges.
Trump’s appeal sets up a potentially landmark case at the high court over the bounds of presidential immunity, and it also places the justices in a position to dictate when Trump can head to trial.
The former president has long looked to delay his criminal cases, and he has found initial success in postponing his Washington, D.C., trial date — originally scheduled for March 4 — by first appealing his immunity claims.
Now, as the historic dispute reaches the Supreme Court, the justices’ decision is poised to have an outsized influence on whether Trump can push the trial beyond the presidential election.
Such a feat would enable Trump to potentially first return to the White House and subsequently pardon himself or direct his Justice Department to drop the prosecution.
One of four criminal cases Trump faces, special counsel Jack Smith charged the former president with four federal felonies that accuse him of conspiring to overturn the results of the 2020 election. Trump pleaded not guilty.
“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,” Trump’s lawyers wrote.
The District of Columbia Circuit Court of Appeals roundly rejected Trump’s claim that a former president enjoys near-total immunity from criminal prosecution unless they have first been impeached and convicted.
“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 for the D.C. Circuit Court of Appeals wrote in its 57-page decision.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment.”
The unanimous decision from the three-judge panel reflected the skepticism the judges expressed during the hearing, where Trump’s attorneys agreed that presidential immunity would cover actions such as ordering an assassination of a political rival.
They also warned the Trump stance that presidents must first be impeached would shield presidents from prosecution for crimes committed while leaving office or those that are discovered later on.
The judges also took aim at a refrain that has been just as present in Trump’s campaign stump speeches as it has in court documents – that he is being unfairly targeted.
“As former President Trump acknowledges that this is the first time since the Founding that a former President has been federally indicted,” the judges wrote.
“Weighing these factors, we conclude that the risk that former Presidents will be unduly harassed by meritless federal criminal prosecutions appears slight.”
Two of the judges who wrote the ruling were nominated by President Biden, while the third was appointed by President George H. W. Bush.
In court papers filed Monday at the Supreme Court, Trump said he would soon file his appeal of the D.C. Circuit’s ruling. In the meantime, he asked the high court to issue an emergency order keeping the trial proceedings on hold until any appeals are resolved.
Only four justices must vote to take up Trump’s eventual appeal. But the former president’s emergency request to pause his trial proceedings, known as a stay, will require five votes.
Chief Justice John Roberts will automatically receive the stay motion, and, in theory, he could act on the request alone. But given the seismic stakes, he is likely to refer the matter to the full court for a vote.
That emergency ruling, which could come within days, will serve as a major indication for when this Trump case may reach trial.
Before bringing the immunity appeal to the Supreme Court on the merits, Trump’s attorneys indicated they next want to ask the full D.C. Circuit bench to reconsider the three-judge panel’s ruling. Pursuing that step would take additional time, aiding Trump in his goal of moving the trial after the 2024 election.
The justices could grant that request in an emergency ruling, issuing a pause that allows Trump to first seek the full D.C. Circuit’s review.
“The reasons to do so are compelling,” Trump’s lawyers wrote. “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.”
But the justices also have the option to simultaneously announce they will hear Trump’s appeal in full without waiting for him to run out the clock. In that scenario, the court would also set a schedule for the written briefing schedule and oral arguments.
The court has begun taking up cases for its next term, but it could expedite the schedule to still announce a decision on Trump’s immunity in the coming months. It would follow the Supreme Court’s decision to expedite Trump’s appeal of a ruling disqualifying him from Colorado’s ballot under the 14th Amendment’s insurrection ban.
Some spectators however, have posited that the high court may decline to take up the immunity case.
Although the conservative-majority court includes three Trump appointees, the justices have at times sided against the former president in his various legal entanglements or refused to get involved.
The court previously declined a petition from Smith to leapfrog the appeals court and immediately take up the case, instead opting to first let it be heard by the lower court.
But it could again decline to take up the case, with some arguing the strength of the lower court’s opinions prompt the court to leave the case be.
“I do not think the Supreme Court will hear Trump’s appeal. Of course, anything can happen and it takes 4 of the 9 Justices to vote to hear a case. But Trump’s argument is so weak and the Court of Appeals decision so thorough and well done, I can see SCOTUS voting not to hear it,” Neal Katyal, who served as acting solicitor general under the Obama administration, wrote on X, the social media platform formerly known as Twitter.
CNN legal analyst Elie Honig agreed, noting that at every turn, the courts have ruled against Trump and those who aided in his effort to stay in power, determining their government role offered no legal cover for their actions.
“Everyone who’s made this argument that ‘What we did in connection with what led up to Jan. 6 was somehow within our jobs’ is 0-for-however many now. And I do think this unanimity makes it more likely that the Supreme Court may say, ‘No, we don’t need to interfere,’” he said last week.
While it is widely expected the Supreme Court would uphold the lower court’s decision, taking up the case would mean more delay for Trump’s ultimate trial date, which U.S. District Court Judge Tanya Chutkan has said she will bump back in accordance with the time spent weighing the appeal.
Proceedings before the lower court took roughly two months between the briefings leading up to the hearing and their consideration of the issue afterwards.
A grant by the Supreme Court would similarly suck up additional time, with Andrew Weissmann, a former prosecutor on special counsel Robert Mueller’s team, warning a delay could punt the trial too close to election season for the Justice Department to contribute with the case.
“The Supreme Court would be taking the appeal of the DC Circuit immunity decision to affirm it, not to reverse it; but by taking it they would risk in effect giving Trump immunity by pushing the trial past the election, and thereby denying the public’s right to a speedy trial,” he previously wrote on X.
Updated at 5:48 p.m. ET