Special Counsel Jack Smith Asks Supreme Court to Weigh In on Trump’s Claim of Presidential Immunity from Criminal Prosecution
“Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution”
On December 1, the U.S. Court of Appeals for the D.C. Circuit affirmed a D.C. trial court’s denial of Trump’s claim of presidential immunity.
Based on that affirmance, federal judge Tanya Chutkan, who is overseeing the criminal trial against Trump, denied Trump’s motion to dismiss Special Counsel Jack Smith’s case, as Professor Jacobson reported: DC Court Denies Trump’s Motion To Dismiss DOJ Criminal Case Based on Claimed ‘Absolute’ Presidential Immunity.
From the Opinion denying Trump’s motion to dismiss:
The United States has charged former President Donald J. Trump with four counts of criminal conduct that he allegedly committed during the waning days of his Presidency. See Indictment, ECF No. 1. He has moved to dismiss the charges against him based on Presidential immunity, ECF No. 74 (“Immunity Motion”), and on constitutional grounds, ECF No. 113 (“Constitutional Motion”).1 For the reasons set forth below, the court will DENY both motions….
Defendant contends that the Constitution grants him “absolute immunity from criminal prosecution for actions performed within the ‘outer perimeter’ of his official responsibility” while he served as President of the United States, so long as he was not both impeached and convicted for those actions. Immunity Motion at 8, 11–13 (formatting modified). The Constitution’s text, structure, and history do not support that contention. No court—or any other branch of government—has ever accepted it. And this court will not so hold. Whatever immunities a sitting President may enjoy, the United States has only one Chief Executive at a time, and that position does not confer a lifelong “get-out-of-jail-free” pass. Former Presidents enjoy no special conditions on their federal criminal liability. Defendant may be subject to federal investigation, indictment, prosecution, conviction, and punishment for any criminal acts undertaken while in office….
For the foregoing reasons, the court will DENY Motion to Dismiss Indictment Based on Presidential Immunity…and Motion to Dismiss the Indictment Based on Constitutional Grounds.
On December 7, former President Trump filed a Notice of Appeal of Judge Chutkan’s denial of his motion to dismiss, and that appeal was docketed in the Court of Appeals for the D.C. Circuit.
But now, Special Prosecutor Jack Smith has filed a special “petition for a writ for certiorari before judgment” with the United States Supreme Court, which has docketed the petition and ordered former President Trump to respond by Wednesday, December 20.
This petition asks the Supreme Court to weigh in on Trump’s claim that he is immune from criminal prosecution and to weigh in expeditiously.
From the Wall Street Journal: Special Counsel Asks Supreme Court to Quickly Rule on Trump’s Immunity:
Special counsel Jack Smith asked the Supreme Court to take up Donald Trump’s claim that he is immune from prosecution and cannot face criminal charges related to efforts to overturn the November 2020 election, in an unusual effort to expedite a judgment crucial for moving the case speedily toward trial.
The former president’s lawyers have grounded that argument in the Senate having acquitted him in an 2021 impeachment trial involving many of the same events, and that trying him again would amount to double jeopardy—that is, being prosecuted twice for the same crime.
Smith’s motion asks the court to take up the case before an appeals court considers it, forcing the justices to squarely weigh in on when, if at all, Trump’s trial should move forward.
A federal district judge rejected that argument, but Trump’s appeal to a federal circuit court could knock the criminal trial, scheduled to begin in March, off schedule, Smith wrote. In a bid to forestall that outcome, he asked the justices to cut out the appeals court and rule directly on the matter….
“Given the weighty and consequential character of the constitutional questions at stake, only this Court can provide the definitive and final resolution,” Smith wrote. In August, a federal grand jury in Washington indicted Trump on four counts over his efforts to overturn his 2020 defeat, including conspiracy to prevent citizens’ votes from being counted.
In contrast to the 2021 impeachment, the criminal charges don’t allege that Trump incited his followers to attack on Jan. 6 of that year. They do assert that he corruptly sought to undermine the election’s outcome by such acts as organizing slates of fraudulent electors and pressuring officials, including Vice President Mike Pence, to alter the results. Trump has pleaded not guilty….
Smith asked the court to give Trump one week to respond to his motion, a schedule that would allow the justices to decide before year’s end whether to take up the question.
It is clear that Special Prosecutor Smith is pretty desperate to keep Trump’s March criminal trial on track.
This is a rapidly developing situation, and we will keep you updated as things develop.DONATE
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