Former President Donald Trump has asked the Supreme Court to pause the U.S. Court of Appeals for the D.C. Circuit’s rejection of his presidential immunity claim.
“This Court should stay the D.C. Circuit’s mandate to forestall, once again, an unprecedented and unacceptable departure from ordinary appellate procedures and allow President Trump’s claim of immunity to be decided in the ordinary course of justice,” wrote Trump’s lawyers.
The district court gave Trump’s team until February 12 to make this filing.
If the justices do not issue a stay as they consider his appeal, the trial will resume.
Trump’s team presented SCOTUS with two questions:
I. Whether the doctrine of absolute presidential immunity includes immunity from criminal prosecution for a President’s official acts, i.e., those performed within the “‘outer perimeter’ of his official responsibility.” Nixon v. Fitzgerald, 457 U.S. 731, 756 (1982) (quoting Barr v. Matteo, 360 U.S. 564, 575 (1959)).II. Whether the Impeachment Judgment Clause, U.S. CONST. art. I, § 3, cl. 7, and principles of double jeopardy foreclose the criminal prosecution of a President who has been impeached and acquitted by the U.S. Senate for the same and/or closely related conduct that underlies the criminal charges.
The team claimed the district court did not consider if Trump’s “alleged actions fell within the ‘outer perimeter of his official responsibility.'”
The “outer perimeter” means outside of the President’s official duties. SCOTUS found “in Nixon v. Fitzgerald that the President is absolutely immune in actions for civil damages for all acts within the ‘outer perimeter’ of his official duties.”
The lawyers believe that if Trump loses presidential immunity, it could threaten future presidents. In other words…another dangerous precedent being set because Orange Man Bad tunnel vision:
The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts—especially the most politically controversial decisions. 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. This threat will hang like a millstone around every future President’s neck, distorting Presidential decision making, undermining the President’s independence, and clouding the President’s ability “‘to deal fearlessly and impartially with’ the duties of his office.” Id. at 752. Without immunity from criminal prosecution, the Presidency as we know it will cease to exist.
Trump’s lawyers also pointed out that the stay would also provide another relief, giving Trump time to petition for an en banc consideration.
The en banc review would ask the entire district court to review the decision:
As additional relief, in issuing its stay, President Trump requests that this Court direct that the D.C. Circuit’s mandate is stayed pending the resolution, not just of proceedings in this Court, but also of President Trump’s planned petition for en banc consideration in the D.C. Circuit, which he intends to file in the D.C. Circuit in the ordinary course before seeking (if necessary) this Court’s review, if given the opportunity to do so. As noted in President Trump’s Brief in Opposition in No. 23-624, en banc consideration by the lower courts provides an important part of the percolation that this Court ordinarily prefers before reviewing petitions for certiorari. For example, in United States v. Nixon, this Court had the benefit of the multiple thoughtful opinions produced by the D.C. Circuit’s en banc consideration of Nixon v. Sirica, which addressed the same executive privilege asserted against a grand-jury subpoena the year before. 487 F.2d 700, 700-22 (D.C. Cir. 1973) (en banc) (cited in Nixon, 418 U.S. at 689, 708 & n.17); id. at 729 (MacKinnon, J., concurring in part and dissenting in part); id. at 762 (Wilkey, J., dissenting). Allowing President Trump to pursue en banc review in the D.C. Circuit will provide an opportunity for similar thoughtful consideration in the lower court before this Court addresses the novel, complex, and momentous issues at stake in this appeal. See Belk v. Charlotte-Mecklenburg Bd. of Educ., 211 F.3d 853, 854-55 (4th Cir. 2000) (Wilkinson, C.J., concurring in the denial of initial hearing en banc).
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