Supreme Court: Trump must respond to special counsel’s presidential immunity petition before Christmas

The Supreme Court has indicated it will expedite consideration of a petition by special counsel Jack Smith on whether former President Donald Trump can be prosecuted on charges he plotted to overturn the 2020 election results.

Smith made his request for the court to act with unusual speed to prevent any delays that could push back the trial until after next year’s presidential election.

Former President Donald Trump and special counsel Jack Smith.  (Getty Images)

Trump’s trial in the election interference case is set to begin in March. 

The Court has asked Trump’s lawyers to respond to the special counsel’s motion by next Wednesday, December 20 – two days later than Smith had requested. 

The Court’s next scheduled conference day for consideration of such matters is Jan. 5, 2024. The court’s brief order did not signal what it ultimately would do.

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A federal judge ruled the case could go forward, but Trump said he would ask the federal appeals court in Washington to reverse that outcome. Smith is attempting to bypass the appeals court – the usual next step in the process – and have the Supreme Court take up the matter directly.

Special Counsel Jack Smith

Jack Smith, US special counsel, speaks during a news conference in Washington, DC, US, on Tuesday, Aug. 1, 2023. (Al Drago/Bloomberg via Getty Images)

“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,” prosecutors wrote.

Trump’s presidential campaign criticized Smith for trying to go around the appeals court. 

“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,” the campaign said in a statement.

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The court is next scheduled to meet privately on Jan. 5, 2024. It’s unclear whether the justices would convene sooner to take up Smith’s request.

At issue is a Dec. 1 ruling from U.S. District Judge Tanya Chutkan that rejected arguments by Trump’s lawyers that he was immune from federal prosecution. In her order, Chutkan wrote that the office of the president “does not confer a lifelong ‘get-out-of-jail-free’ pass.”

Donald Trump wearing a red make america great again hat

Former President Trump.  (Sean Rayford/Getty Images)

“Former Presidents enjoy no special conditions on their federal criminal liability,” Chutkan wrote. “Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office.”

If the justices get involved, they would have an opportunity to rule for the first time on whether ex-presidents enjoy immunity from prosecution. Justice Department policy prohibits the indictment of a sitting president. 

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Trump lawyers, meanwhile, have said he cannot be charged for actions that fell within his official duties as president — a claim that prosecutors have vigorously rejected.

Smith’s team says there would not be an opportunity to consider and resolve the question in the current term if the court did not expedite the matter. 

“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote. “The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”

Donald Trump

Former U.S. President Donald Trump speaks to a crowd during a campaign rally on September 25, 2023, in Summerville, South Carolina. (Sean Rayford/Getty Images)

Prosecutors are also asking the court to take up Trump’s claim, also already rejected by Chutkan, that he cannot be prosecuted in court for conduct for which he was already impeached — and acquitted — before Congress. 

Trump faces charges accusing him of working to overturn the results of the 2020 election he lost to Democrat Joe Biden before the violent riot by his supporters at the U.S. Capitol. He has denied any wrongdoing.

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If the justices decline to step in at this point, Trump’s appeal would continue at the U.S. Court of Appeals for the District of Columbia Circuit. Smith has asked for quick review there, too but said even a rapid appellate decision might not get to the Supreme Court in time for review and final word before the court’s traditional summer break.

The Associated Press contributed to this report.

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