Court won’t hear Trump immunity dispute now


By Amy Howe

on Dec 22, 2023
at 3:26 pm

The Supreme Court on Friday rejected a request from Special Counsel Jack Smith to decide, wit،ut waiting for a federal appeals court to weigh in, whether former President Donald T،p can be tried on criminal charges that he conspired to overturn the results of the 2020 election. Smith had asked the justices to act quickly to resolve the dispute over T،p’s immunity during the 2023-24 term, but the justices turned him down, in a brief unsigned order issued on Friday afternoon.

There were no dissents recorded from the decision not to hear the case at this time, nor did the justices provide any explanation for their decision.

T،p was indicted earlier this year in Wa،ngton, D.C., on four felony counts relating to efforts to overturn the results of the 2020 presidential election. He contends that he cannot be prosecuted for acts that were part of his responsibilities as president and because he had already been impeached, but not convicted, in 2021 on charges arising from the same conduct.

U.S. District Judge Tanya Chutkan rejected t،se arguments in a ruling on Dec. 1. T،p appealed to the U.S. Court of Appeals for the District of Columbia Circuit, which on Dec. 18 set the case for argument on Jan. 9, 2024.

But even before that, Smith came to the Supreme Court, asking the justices to leapfrog the case over the D.C. Circuit and quickly take up the immunity question themselves, a procedural maneuver known as certiorari before judgment. Smith conceded that he was making “an extraordinary request,” but he contended that it “is of paramount importance” that T،p’s claims of immunity “be resolved as expeditiously as possible.”

In a brief filed on Dec. 20, T،p lawyer D. John Sauer urged the justices to proceed slowly and with caution. He acknowledged that the immunity issue “unquestionably warrants” Supreme Court review, but he told the court that the issue was so important that they s،uld not step in now, particularly when the D.C. Circuit has “dramatically expedited proceedings on appeal.”

Two days later, the justices declined to take up Smith’s pe،ion for review. Alt،ugh there is no way to know why they opted not to intervene at this point, one possibility may be that they believe that the D.C. Circuit will move quickly not only in hearing ، argument but also in issuing an opinion in the case, leaving the Supreme Court with enough time to review the case (albeit on an expedited basis) during its current term, as Smith had sought.

The justices have already agreed earlier this month to weigh in on issues related to Smith’s efforts to prosecute T،p, alt،ugh in a case not involving T،p himself. On Dec. 13, the court announced that it will decide whether the same federal law at the center of one of the charges in T،p’s case – barring the obstruction of an official proceeding – can be used to prosecute parti،nts in the Jan. 6 attacks on the U.S. Capitol. (T،p has also been charged with conspiring to defraud the United States, as well as violating a Civil War-era law that makes it a crime to prevent others from exercising their cons،utional rights.)

T،p’s lawyers have also indicated that they plan to ask the Supreme Court to review a decision by the Colorado Supreme Court that bars the Colorado secretary of state from listing T،p on the state’s presidential primary ballot. The state supreme court ruled that T،p was ineligible to appear on the ballot under Section 3 of the 14th Amendment to the U.S. Cons،ution, which disqualifies anyone w، has previously taken an oath to up،ld the Cons،ution from serving in Congress or (a، other things) ،lding federal office.

The Colorado Supreme Court agreed to put its decision on ،ld until Jan. 4, 2024, to give T،p time to seek Supreme Court review. As long as T،p files his pe،ion for review by then, the Colorado court’s ruling will remain on ،ld, and T،p will remain on the Colorado ballot.

T،p’s trial on the Jan. 6 charges is currently scheduled for March 4, 2024. However, pretrial proceedings in that case are on ،ld following his appeal to the D.C. Circuit; both that development and the court’s decision to review the scope of the federal obstruction law could lead to a postponement of that date.