DOJ Takes Trump To Supreme Court: Asks Justices If Trump Has Immunity In Jan. 6 Criminal Case

Topline

Justice Department prosecutors asked the Supreme Court Monday to decide if former President Donald Trump can get out of the federal indictment for trying to overturn the 2020 election, asking the court to decide “promptly” whether Trump is immune from the charges against him in order to have the dispute resolved before the 2024 election.

Former President Donald Trump speaks to reporters in New York State Supreme Court on December 7 in … [+] New York City.

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Key Facts

Special Counsel Jack Smith, who’s leading the investigation against Trump, asked the Supreme Court to consider the issue of whether a president is “absolutely immune” from being prosecuted in federal court for crimes committed while in office, or if presidents are protected from prosecution if “he has been impeached but not convicted before the criminal proceedings begin.”

Trump has tried to have the charges against him dismissed by arguing he has presidential “immunity” because he was in office when trying to overturn the 2020 election.

U.S. District Judge Tanya Chutkan rejected that request, ruling Trump’s time in the White House didn’t give him the “divine right of kings to evade the criminal accountability that governs his fellow citizens.”

Trump then appealed Chutkan’s order and asked Chutkan to stop all proceedings in the case until the appeals court rules, even going so far to say that he would automatically act as if the case was paused unless Chutkan said otherwise—which could postpone his planned March 2024 trial.

Smith preemptively went to the Supreme Court before the appeals court has ruled on the issue so that the case won’t get any more delayed, arguing it’s of “imperative public importance that [Trump’s] claims of immunity be resolved by this Court and that [his] trial proceed as promptly as possible if his claim of immunity is rejected.”

Trump’s spokesperson has not yet responded to a request for comment.

Crucial Quote

Trump’s claims of presidential immunity “are profoundly mistaken, as the district court held,” Smith wrote in his petition to the Supreme Court. “But only this Court can definitively resolve them.”

What To Watch For

Smith asked the Supreme Court to take up the presidential immunity issue for oral arguments, and for the case to be considered swiftly so that it “may be briefed, argued, and decided during the ordinary decisional time for cases argued this Term.” That would mean if the court takes up the case, a final decision would come out sometime before the Supreme Court’s term wraps up in June 2024. If the court doesn’t take up the case now, Smith asked for the justices to hear the case later, as soon as the federal appeals court rules. It’s still unclear when the court could rule on whether or not it will take up the case, which at least four justices must vote in favor of.

What We Don’t Know

What this means for Trump’s planned March trial date. Smith repeatedly mentioned to the Supreme Court that the trial is scheduled to begin on March 4, 2024, but so far it’s not clear if the Supreme Court will try to act in the case in time for the trial to proceed as scheduled, or if the date would have to be pushed back in case the court doesn’t rule until June. Should the court rule in Trump’s favor, that would also mean the charges against Trump would be dismissed and the trial would not happen.

Key Background

Trump has been indicted on four felony charges in the federal election case, one of four criminal cases the ex-president now faces, with prosecutors focusing on Trump and his allies’ wide-ranging plot to overturn the 2020 election. The case is one of several that have been brought against Trump over his post-election activities, along with multiple civil cases and separate criminal charges in Georgia. The ex-president has repeatedly argued he should not face legal consequences for his efforts to challenge the vote count because of his purported “presidential immunity.” The Justice Department has long held that sitting presidents cannot be indicted while in office, but the issue of whether charges can be brought against Trump now that he’s out of the White House—for campaign activities that weren’t directly tied to his presidential duties—has been an unsettled question in the years since Trump left office. Multiple judges have ruled that Trump is not entitled to presidential immunity: Chutkan expressed that view when she denied Trump’s motion to dismiss, and judges at the D.C. Circuit Court of Appeals ruled earlier in December that Trump couldn’t have civil cases dismissed against him for allegedly inciting the Jan. 6 riot after he claimed to have immunity. The dispute has long been expected to make it to the Supreme Court.