Trump asks Supreme Court to postpone hearing on immunity claim

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Former President Donald J. Trump on Wednesday urged the Supreme Court to postpone a decision on a crucial question in his federal prosecution on charges of conspiring to overturn the 2020 election: whether he has “absolute immunity” for actions he took as president.

The issue, according to Trump's report, should be “resolved cautiously and deliberately, not at breakneck speed.” He urged the justices not to “rush into deciding issues with reckless abandon.”

The request appeared to be part of Trump's overall strategy of trying to delay the trial in the case, which is scheduled to begin March 4. That date, Trump's lawyers wrote, “has no talismanic significance.”

Last week, Jack Smith, the special prosecutor, asked the Supreme Court to bypass a federal appeals court and agree to hear the immunity question on an expedited schedule. Trump opposed that request on Wednesday, saying the importance of the issue warranted careful and slow deliberation by the appeals court before the justices decided whether to take it up.

Trump's report said Smith's desire for expedited treatment was driven by political considerations.

“It confuses the 'public interest' with the overt partisan interest in ensuring that President Trump is subjected to a month-long criminal trial at the height of a presidential campaign in which he is the leading candidate and the only serious opponent of the current administration.” the writing said. “The combination of a nearly three-year wait to bring this case and the special counsel's current demand for an extraordinary expedition, supported by the vaguest of justifications, creates a compelling inference of partisan motivation.”

The Supreme Court is likely to decide whether to consider the case soon. If it does, it could hear arguments in January and issue a decision in the coming weeks. If it dismisses the case for now, the appeals court will consider the issue, after which the losing party will almost certainly return to the Supreme Court.

Working in parallel, Mr. Smith has also asked the United States Court of Appeals for the District of Columbia Circuit to consider the issue at the same time. Last week, a three-judge panel of the court agreed with Mr. Smith's request for an expedited schedule and set an aggressive schedule for all written submissions to be filed by Jan. 2. The court set oral arguments for January 9.

Judge Tanya S. Chutkan of the U.S. District Court in Washington stayed the case while the appeals court considers the immunity issue, although prosecutors have tried to push it, angering Trump's lawyers.

The two sides agree that the issue of immunity is of utmost importance, but they differ on the timing. Smith has asked the justices to act quickly, relying on a relatively uncommon procedure, called “certiorari before ruling,” in an attempt to bypass the appeals court. Trump urged the justices to allow appeals in the case to proceed as usual.

Importance does not automatically require speed,”said his writing. “If anything, the opposite usually happens. Novel, complex, sensitive and historical issues, such as the existence of presidential immunity from criminal prosecution for official acts, demand more careful deliberation, not less.”

Resolving the immunity question will be crucial to deciding whether the election interference case goes to trial before the 2024 election. It could also affect the timing of some of Trump's other criminal cases, which depend largely on when the case in Washington is presented to a jury.

Trump would like to delay the two federal trials he faces until the race is over. If he wins, he would have the power to order the charges against him to be dropped.

The Supreme Court will soon face a different issue that arises after the 2020 election. On Tuesday, the Colorado Supreme Court ruled that Trump is ineligible to be on the primary ballot in that state under a provision of the Constitution that prohibits officials who have participated in the insurrection take office. Trump has said he will appeal that ruling to the Supreme Court.

In his request to speed things up in the immunity case, Mr. Smith invoked a precedent from 1974, United States v. Nixon, in which the Supreme Court unanimously (and quickly) ruled that President Richard M. Nixon, then still in power, office, had to comply with a court subpoena to request tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

“Neither the doctrine of the separation of powers, nor the need for confidentiality of high-level communications, without more, can support an absolute and unconditional presidential privilege of immunity from judicial process in all circumstances,” the president of the Court wrote. Supreme, Warren E. Burger.

Mr. Smith noted that the Supreme Court moved with considerable speed in the case, using the “certiorari before sentencing” procedure. The court granted review a week after the petition was filed, scheduled expedited arguments and issued its decision 16 days later.

Trump's lawyers, by contrast, relied heavily on Nixon v. Fitzgerald, a 1982 decision that also involved Nixon. It was a civil case brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. When the Supreme Court acted, Nixon had been out of office for several years.

By a vote of 5 to 4, the justices ruled in favor of Nixon. “In view of the special nature of the office and the constitutional functions of the president,” Justice Lewis F. Powell Jr. wrote for the majority, “we believe it is appropriate to recognize absolute presidential immunity from liability for damages for acts within the 'outer perimeter' of the presidency.” his official responsibility.”

In December, Judge Chutkan rejected Trump's arguments. “Whatever immunities a sitting president may enjoy,” he wrote, “the United States has only one chief executive at a time, and that position does not confer a lifetime get-out-of-jail-free pass.”

He added that the 1982 decision did not address the alleged criminal conduct.

“The reason for protecting a president's controversial decisions from civil liability does not extend to protecting his criminality,” Judge Chutkan wrote.

The language of the 1982 decision supported the distinction between civil and criminal cases, he wrote.

Justice Powell's majority opinion noted that “the court has previously recognized that there is less public interest in actions for civil damages than, for example, in criminal proceedings.”

Chief Justice Burger underscored this point in a concurring opinion. “Immunity is limited to claims for civil damages,” he wrote.

In 2020, the Supreme Court ruled 7 to 2 in Trump v. Vance that Trump had no absolute right to block the disclosure of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to present evidence when called upon in a criminal proceeding,” wrote Chief Justice John G. Roberts Jr. for the majority.

Alan Feuer contributed with reports.



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