March 1, 2024

Washington — Former President Donald Trump urged the Supreme Court on Wednesday to deny a request from special counsel Jack Smith and decline to consider Trump’s claims of presidential immunity from criminal prosecution before an appeals court can examine the matter.

Attorneys for the former president wrote in a filing with the high court that its ordinary review procedures will allow the U.S. Court of Appeals for the District of Columbia Circuit to address Trump’s appeal first, with the benefit of the lower court’s consideration of “historic topics.”

The justices are currently weighing a request from Smith to bypass the D.C. Circuit and quickly decide whether Trump is fully shielded from criminal prosecution for charges stemming from his alleged attempt to overturn the results of the 2020 election. Trump has pleaded not guilty in the case.

“In 234 years of American history, no president ever faced criminal prosecution for his official acts. Until 19 days ago, no court had ever addressed whether immunity from such prosecution exists,” Trump’s legal team wrote in Wednesday’s filing. “To this day, no appellate court has addressed it. The question stands among the most complex, intricate, and momentous issues that this Court will be called on to decide.”

Former President Donald Trump attends his civil fraud trial in New York City on Dec. 7, 2023.

EDUARDO MUNOZ ALVAREZ/POOL/AFP via Getty Images


They said that in asking the Supreme Court to fast-track the case and leap-frog the D.C. Circuit, the special counsel is urging the high court to “rush to decide the issues with reckless abandon.” 

Trump’s lawyers raised several issues with Smith’s request, arguing in part that the government lacks legal standing to appeal a ruling in its favor. They also reiterated that the indictment returned by a federal grand jury in August charges Trump with acts of political speech and advocacy — contesting the outcome of the 2020 election — while he was still in the White House.

“An erroneous denial of a claim of presidential immunity from criminal prosecution for official acts warrants this Court’s review — in due course,” lawyers John Sauer, John Lauro and Todd Blanche wrote. “Yet importance does not automatically necessitate speed.”

A trial in the case against Trump is set to begin March 4, and Smith has said it’s critical for it to proceed on time if the former president’s claim of immunity is rejected. Trump’s lawyers, though, argued that the request created the “compelling appearance of partisan motivation: To ensure that President Trump — the leading Republican candidate for President, and the greatest electoral threat to President Biden — will face a months-long criminal trial at the height of his presidential campaign.”

They accused Smith of pursuing Mr. Biden’s partisan interest and noted that the trial is scheduled to start one day before Super Tuesday, when more than a dozen states hold their presidential primary contests.

The fight over immunity 

At issue is Trump’s claim that the four-count indictment against him should be dismissed because the alleged conduct arose from official acts undertaken while he was president. A federal district court judge rejected Trump’s effort to toss out the case earlier this month.

“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,” U.S. District Judge Tanya Chutkan wrote in her Dec. 1 opinion allowing the case against Trump to move forward. Trump appealed to the D.C. Circuit, and Chutkan agreed to pause all proceedings in the case while the appeal plays out.

The special counsel then made his unusual request to the high court, teeing up a pivotal fight that could decide the future of Trump’s prosecution just weeks before the first votes are cast in the Republican presidential primaries.

“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 wrote in his request earlier this month. “Respondent’s claims are profoundly mistaken, as the district court held. But only this court can definitively resolve them.”

Special counsel Jack Smith makes a statement in Washington on Thursday, June 9, 2023.
Special counsel Jack Smith makes a statement in Washington on Thursday, June 9, 2023. 

Tom Brenner for The Washington Post via Getty Images


Smith told the justices that no person is above the law, including a former president who has been accused of committing federal offenses to thwart the transfer of power to his successor.

“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 wrote.

Smith also asked the justices to consider the former president’s assertion that he is constitutionally protected from prosecution because he was impeached by the House — and acquitted by the Senate — for the same conduct that underlies the criminal charges, a claim the district court also rejected.

In their filing Wednesday, Trump’s lawyers told the Supreme Court that under the Constitution’s “balanced, structural approach,” a president can be prosecuted only if he is impeached, tried and convicted by the Senate.

“The Constitution opens the door to such prosecutions, but requires a strong political consensus — i.e., the participation of the political branches, including a supermajority of the U.S. Senate, the Republic’s traditional ‘cooling saucer’ — before such a drastic action can be taken,” they wrote.

The Supreme Court could decide whether it will fast-track the case in the coming days. If the justices agree to hear the case before the appeals court rules, arguments could be held as soon as next month. The high court could also decide to wait to weigh in until after the D.C. Circuit has ruled. The appeals court has scheduled arguments for Jan. 9, though that could change if the Supreme Court agrees to hear the case.

A ruling from the Supreme Court finding that Trump is shielded from prosecution would bring the case to an end, but if the justices rule in the Justice Department’s favor, the trial against the former president is all but certain to move forward. Smith has asked the justices to move swiftly, given the March 4 trial date.

In their filing, Trump’s lawyers said that if the Supreme Court decides to take up the case before the D.C. Circuit, it should reject Smith’s proposed briefing schedule, which they said “would require briefing the merits of these issues on a radically compressed timetable,” and instead proceed with an ordinary schedule.