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Special counsel asks Supreme Court to decide whether Trump has immunity

Former President Donald Trump speaks after exiting the courtroom for a break at New York Supreme Court on Dec. 7 in New York.
Eduardo Munoz Alvarez
Former President Donald Trump speaks after exiting the courtroom for a break at New York Supreme Court on Dec. 7 in New York.

Updated December 11, 2023 at 4:32 PM ET

The special counsel prosecuting Donald Trump for interfering in the 2020 election is asking the U.S. Supreme Court to hit fast-forward and hear a dispute about whether the former president enjoyed broad immunity from criminal charges as a result of his position.

Lawyers working for special counsel Jack Smith assert the case warrants "immediate review" by the highest court in the nation, in part because the March 2024 trial date for Trump hangs in the balance. They said their "extraordinary" request befits this extraordinary case.

"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," the special counsel lawyers wrote.

They're asking the Supreme Court to consider a fundamental question at the "heart" of American democracy: whether a former president is completely immune from federal prosecution for crimes he commits in office, or whether he deserves constitutional protection if he has been impeached but not convicted before criminal proceedings commence.

Earlier this month, U.S. District Judge Tanya Chutkan dismissed those arguments from Trump, who lodged an appeal with the U.S. Court of Appeals for the D.C. Circuit. But the Justice Department wants the high court to take the case and weigh in since it will be the ultimate authority.

A significant delay might mean the high court wouldn't consider the case this term. And Trump allies have suggested if he regains the White House, he might direct his new Justice Department leaders to dismiss the charges or attempt to pardon himself.

In its 81-page petition, the federal government pointed out the Supreme Court expedited a review of another landmark case involving executive authority, a clash over access to White House tapes in United States v. Nixon, back in 1974. The court heard and decided that case within two months, the special counsel team said.

In another case that dates to the Nixon era, the high court found presidents have a measure of immunity from civil claims if they relate to the "outer perimeter" of their official duties. And the Justice Department has said for decades that a sitting president can't be indicted by the federal government while he's in the White House. But that doesn't put a former president beyond the long arm of U.S. criminal law, the government said.

"It is of imperative public importance that respondent's claims of immunity be resolved by this Court and that respondent's trial proceed as promptly as possible if his claim of immunity is rejected," Smith's team wrote.

Trump, who has pleaded not guilty to four felony charges related to his alleged efforts to overturn the 2020 election, has sought to delay all four criminal cases against him in D.C., Florida, Georgia and New York.

"As President Trump has said over and over again, this prosecution is completely politically motivated," a Trump spokesman said in a written statement late Monday. "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 high court petition is signed by the special counsel himself because he has authority to litigate before the Supreme Court as part of his job. It's also signed by Michael Dreeben, a longtime high court practitioner who served as the top appeals court lawyer for the former special counsel who examined Russian interference in the 2016 election.

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Carrie Johnson is a justice correspondent for the Washington Desk.