Former President Donald J. Trump is expected to make a last-ditch effort Monday before the Supreme Court to push his claim for complete immunity from criminal prosecution.
When a federal appeals court rejected the lawsuit last week, it temporarily stayed its ruling, saying it would return the case to the lower court on Monday, allowing Judge Tanya S. Chutkan to restart proceedings in the case that had been frozen during appeal. But the appeals court added that it would extend the pause until the Supreme Court rules, if Trump asks the justices to intervene by filing a request for a stay before them before Monday.
That makes it virtually certain that Trump will file such a request in the coming hours, meaning the Supreme Court will soon be ready to determine whether and with what his federal trial on charges that he attempted to subvert the 2020 election will happen. speed.
You have several options. He could deny the stay, which would restart the trial. He could grant a brief stay and then deny a petition seeking a review, effectively rejecting Trump's immunity argument and letting the appeals court ruling stand.
He could hear his appeal on a fast-track basis, as he is doing in a separate case over Trump's eligibility to hold office. Or it could hear the case on the usual schedule, which would most likely delay any trial after the election.
In other words, timing is everything. Unless the judges act quickly, the trial could move to the heart of the 2024 campaign, or even beyond the election.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, unanimously rejecting Trump's argument that he cannot be prosecuted for actions he took while in office, said it became a ordinary citizen in the eyes of the criminal law after leaving office.
“For the purposes of this criminal case, former President Trump has become a Trump citizen, with all the defenses of any other criminal defendant,” the panel wrote in an unsigned opinion. “But any executive immunity that may have protected him while he served as The president no longer protects him against this prosecution.”
The panel, made up of a Republican appointee and two Democrats, also limited Trump's litigation options, saying the case would return to the lower court for additional proceedings unless he requests a stay from the Supreme Court by Monday. Requesting a review by the full appeals court, the panel said, would not stop the clock.
The trial was due to begin on March 4, but Judge Chutkan removed it from her calendar.
The Supreme Court already had a brush with the case, rejecting an unusual request in December from Jack Smith, the special counsel prosecuting Trump. Smith had asked the justices to bypass the appeals court and decide the immunity question themselves without delay.
Mr. Smith urged the judges to act quickly: “The public importance of the issues, the imminence of the scheduled trial date, and the need for prompt and final resolution by counsel of defendant's immunity claims in favor of expedited review by this court at this time. “
“The United States recognizes that this is an extraordinary request,” Smith added. “This is an extraordinary case.”
The justices rejected the request without comment or note of disagreement, apparently content to let the appeals court have the first crack at the case. The question now is whether the Supreme Court will want to have the last word.
In previous presidential immunity cases, the court has intervened, setting precedents that point in opposite directions. Two of them involved President Richard M. Nixon.
In 1974, in United States v. Nixon, the court ruled that Nixon, then still in office, had to comply with a subpoena seeking tapes of his Oval Office conversations, 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.
Eight years later, in Nixon v. Fitzgerald, the court voted 5 to 4 in favor of Nixon in 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 court acted, Nixon had been out of office for several years.
“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.”
The appeals court panel in Trump's case gave more weight to the first decision, which involved criminal rather than civil proceedings.
“As the Nixon court explained” in the Oval Office tapes case, the panel wrote, “completely immunizing the president from the criminal justice process would disrupt 'the judiciary's primary constitutional duty to do justice in criminal proceedings.' ”.
The second decision, arising from a civil suit, was less instructive, the panel wrote. “In considering the question of presidential immunity,” the ruling said, “the Supreme Court has been careful to note that its conclusions on civil liability do not carry over to criminal proceedings.”
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