The Supreme Court on Tuesday told special counsel Jack Smith to respond to former President Trump’s request for it to take up his presidential immunity claim as the justices weigh how to proceed in the unprecedented legal battle.
Mr. Trump asked the justices on Monday to put a hold on the case, saying he’ll soon file an appeal of the ruling from the U.S. Court of Appeals for the D.C. Circuit, which last week said the ex-president’s claim of blanket immunity would put him above the rule of law and “collapse our system of separated powers.”
The justices gave Mr. Smith, who is prosecuting the president, until Feb. 20 to respond to Mr. Trump’s request for a stay of the case in the lower courts.
On Monday, Mr. Trump sought a stay of the ruling from the U.S. Court of Appeals for the D.C. Circuit, which last week said the ex-president’s claim of blanket immunity would put him above the rule of law and “collapse our system of separated powers.”
Attorneys for Mr. Trump said the high court had a “compelling” reason to take up the case.
“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,” the petition said.
Mr. Trump wants the Supreme Court to consider whether a president enjoys immunity from criminal prosecution for acts performed within the “outer perimeter of his official responsibility.”
He also asked the court to consider whether the principle of double jeopardy prevents criminal prosecution of a president who has been impeached and acquitted by the Senate for the same underlying allegations.
Mr. Trump’s lawyers said presidents make the toughest decisions of any official, making them an easy target for lawsuits.
“If the prosecution of a president is upheld, such prosecutions will recur and become increasingly common, ushering in destructive cycles of recrimination,” they wrote.
How the justices proceed will determine whether Mr. Trump has a showdown with Mr. Smith in federal court before the Nov. 5 election.
The Supreme Court can deny a stay, allowing the trial before U.S. District Court Judge Tanya Chutkan to proceed and possibly start within months.
Or it can grant a stay and decide whether to accept his petition seeking a review by the court.
A denial would keep the circuit ruling in place, meaning Mr. Trump cannot claim immunity.
Taking up the case would force the justices to decide whether to fast-track it, as they did with a separate case regarding state attempts to remove Mr. Trump from the ballot, or they could put the matter on its regular calendar — something that would likely push the matter beyond the election.
An indictment from a grand jury in Washington charges Mr. Trump with four criminal counts: one count of conspiracy to defraud the U.S., one count of conspiracy to violate civil rights and two counts of attempting to obstruct the vote-certification proceedings.
Mr. Trump says the trial is part of a coordinated Democratic effort to thwart his run for reelection.
He faces four criminal cases up and down the East Coast while he campaigns as the front-runner for the GOP presidential nomination and a rematch with President Biden.
The federal election subversion case is viewed as the marquee case.
Mr. Smith secured the indictment based on actions Mr. Trump took following his 2020 election loss to President Biden, including pressuring state officials and the Justice Department to find voter fraud; setting up a false slate of electors in states he lost to Mr. Biden; and leaning on Vice President Mike Pence to send the electoral vote-counting process back to the states instead of certifying the votes in Congress.
Mr. Trump said he was acting in his official capacity when he tried to root out election fraud in 2020 and overturn the results. He said presidents must make tough calls all the time, and failing to grant immunity would spark a cycle of political prosecutions from administration to administration.
The circuit court rejected that argument.
“We conclude that the interest in criminal accountability, held by both the public and the executive branch, outweighs the potential risks of chilling presidential action and permitting vexatious litigation,” its ruling said.
Mr. Trump’s lawyers revived the argument in their petition to the Supreme Court, saying the potential for prosecution will overshadow every future president’s official acts.
“The president’s political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile administration, for acts that do not warrant any such prosecution,” they wrote. “This threat will hang like a millstone around every future president’s neck.”
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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