Former President Donald Trump’s legal team on Wednesday told the Supreme Court not to rush a decision on his claim of presidential immunity for criminal charges brought by special counsel Jack Smith.
The lawyers said the justices should allow the D.C. Circuit Court of Appeals to first weigh the matter, specifically if absolute immunity extends to the president even for official duties on the “outer parameter” of his responsibilities and if Mr. Trump’s 2021 impeachment and acquittal by the Senate serve as double jeopardy for alleged crimes stemming from the riot at the U.S. Capitol on Jan. 6, 2021.
They said an unprecedented case such as this — weighing if a president can face criminal charges for official acts — shouldn’t be decided at “breakneck speed” due to “partisan motivation.”
“Every jurisdiction and prudential consideration calls for this Court to allow the appeal to proceed first in the D.C. Circuit. ‘Haste makes waste’ is an old adage. It has survived because it is right so often,” Mr. Trump’s lawyers wrote.
“In 234 years of American history, no President ever faced criminal prosecution for his official acts. Until 19 days ago, no court had ever addressed whether immunity from such prosecution exists. To this day, no appellate court has addressed it. The question stands among the most complex, intricate, and momentous issues that this Court will be called on to decide.”
Mr. Trump’s lawyers also claimed the government doesn’t have standing to bring the challenge at this time since a lower court ruled in the feds’ favor and against Mr. Trump just over a week ago.
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“The Special Counsel identifies no compelling reason for the extraordinary haste he proposes,” they said in the court filing.
Mr. Trump made the immunity claim against charges of conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction of an official proceeding, and conspiracy against the right to vote. The charges stem from his efforts to overturn the 2020 election results and the pro-Trump mob’s attack on the Capitol on Jan. 6.
Mr. Trump’s filing on Wednesday was in response to Mr. Smith last week asking the justices to fast-track a decision on the presidential immunity issues, skipping a decision by a federal appeals court.
In an 81-page filing, Mr. Smith said the issue is critical to democracy and the high court must settle the question of whether Mr. Trump is immune from federal prosecution for crimes he allegedly committed while president.
He went around the D.C. Circuit Court hoping the justices would answer the question before the appeals panel took it up.
It would take four justices to vote in favor of hearing the dispute.
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Mr. Smith petitioned the justices after Mr. Trump’s legal team claimed he enjoys presidential immunity for a case set to go to trial in March. In the case, Mr. Trump is charged with four crimes related to attempts to overturn the 2020 election results.
A federal judge in Washington ruled against Mr. Trump’s claim of presidential immunity. The case, though, has been put on hold until the issue of presidential immunity is settled — either by the D.C. Circuit or by the high court.
The government asked the justices to hear the case in an expedited manner to resolve the issue before the end of the court’s term in June.
Mr. Trump’s legal team said the D.C. Circuit is already expediting its consideration with oral arguments scheduled at the appellate level on Jan. 9.
Any delay would also benefit Mr. Trump politically, as he doesn’t want to be on trial at the height of his presidential campaign ahead of the November 2024 election.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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