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Special counsel takes Trump immunity issue to Supreme Court

Approach seeks to keep March trial timeline in high-stakes prosecution of former president

John L. "Jack" Smith, special counsel investigating former President Donald Trump, delivers a statement in June.
John L. "Jack" Smith, special counsel investigating former President Donald Trump, delivers a statement in June. (Bill Clark/CQ Roll Call)

Prosecutors asked the Supreme Court on Monday to decide whether former President Donald Trump can face criminal charges, in a move to keep a March trial date for allegations connected to Trump’s alleged effort to overturn the 2020 election.

Special Counsel John L. “Jack” Smith wrote in Monday’s filing that the court should shoot down one of Trump’s main defenses: that his status as president at the time of the alleged acts protects him from prosecution.

And the prosecutors asked the justices to consider the issue quickly to keep the trial from being delayed.

The unusual appeal comes a week after a trial judge rejected Trump’s argument and leapfrogs a federal appeals court in Washington. And it puts the Supreme Court at the center of a high-stakes prosecution of a presidential candidate set to happen an election year.

Trump has made “profoundly mistaken” arguments about the presidency, Smith argues in the filing. Smith said Trump’s arguments that he was immune from prosecution because he was in office, or could not be prosecuted because the Senate failed to convict and remove him in an impeachment trial, “reflected neither logic nor common sense.”

Unless the Supreme Court acts, Trump’s appeal of the issue to the U.S. Court of Appeals for the District of Columbia Circuit could derail the trial set for March 4, the filing states.

Smith argues that Trump’s effort to overturn the election result subverted democracy and the former president should not be allowed to use the appeals process to delay a court reckoning.

“Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct,” Smith wrote.

In a statement Monday, a spokesperson for the Trump presidential campaign called the move a “Hail Mary” and reiterated the former president’s long-term criticism of the case as interference with his presidential hopes next year.

“As President Trump has said over and over again, this prosecution is completely politically motivated. 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 spokesman said.

Smith’s appeal is the latest twist in the fast-moving federal criminal case against the former president, which alleges crimes connected to his effort to remain in power that led to the Jan. 6, 2021, attack on the Capitol.

The four-count indictment unveiled in August alleges Trump led a broad push to overturn his loss in the 2020 election, which included efforts to stop vote counting in numerous states, putting forth false slates of presidential electors and ultimately encouraging Vice President Mike Pence to throw out the Electoral College votes of states Trump lost.

Trump made the presidential immunity argument as one of numerous motions to dismiss the case in October. He argued that “communicating his concerns” about possible fraud in the election fell within his duties as president — and he could not be tried for a crime that the Senate acquitted him of in a February 2021 impeachment trial.

Judge Tanya S. Chutkan of the U.S. District Court for the District of Columbia rejected those arguments in a decision issued earlier this month. Chutkan wrote that the president is not above the law and that he could still face federal charges for conduct that occurred during his term.

“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,” Chutkan wrote.

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