Former President Donald J. Trump is expected to file a final attempt at the Supreme Court on Monday to assert his claim for full immunity from criminal prosecution.
When a federal appeals court rejected the request last week, it temporarily stayed its decision, saying it would send the case back to the trial court on Monday, allowing Judge Tanya S. Chutkan to resume the proceedings in the case which had been frozen during the appeal. But the appeals court added that it would extend the pause until the Supreme Court rules – if Mr. Trump asks the justices to intervene by filing a request for a stay with them by Monday.
That makes it virtually certain that Mr. Trump will file such a request in the coming hours, meaning the Supreme Court will soon be poised to determine whether and how quickly his federal lawsuit for trying to overturn the 2020 election proceeds. will continue.
He has several options. He could refuse a stay, which would restart the trial. He could grant a brief stay and then deny a motion for review, which would effectively reject Mr. Trump’s immunity argument and uphold the appeals court’s ruling.
She could hear her appeal on an expedited basis, as she is doing in a separate case over Mr. Trump’s eligibility to hold office. Or he could hear the case on the usual schedule, which would most likely delay any trial beyond the election.
In other words, timing is everything. If the judges do not act quickly, the trial could be relegated to the heart of the 2024 campaign, or even beyond the elections.
A three-judge panel of the United States Court of Appeals for the District of Columbia Circuit, unanimously rejecting Mr. Trump’s argument that he could not be prosecuted for the acts he posed during his term, stated that he had become an ordinary citizen in the eyes of the criminal law after leaving office.
“For 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 might have protected him while he was in office no longer protects him from these prosecutions.
The panel, made up of one Republican and two Democrats, also limited Mr. Trump’s litigation options, saying the case would be sent back to the trial court for further proceedings unless he requests a stay at the Supreme Court by Monday. Requesting a review from the full appeals court, the panel said, would not stop time.
The trial was scheduled to begin March 4, but Judge Chutkan removed it from her schedule.
The Supreme Court has already had a first brush with the case, rejecting an unusual request in December from Jack Smith, the special counsel prosecuting Mr. Trump. Mr. Smith had asked the judges to bypass the court of appeal and decide themselves without delay on the question of immunity.
Mr. Smith urged the justices to act quickly: “The public importance of the issues, the imminence of the scheduled trial date and the need for a speedy and final resolution of the defendant’s immunity claims in favor of a expedited review by this court at this stage. »
“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 dissent, apparently content to let the appeals court have the first word on the case. The question now is whether the Supreme Court will want to have the last word.
In previous cases involving presidential immunity, the court has intervened, setting precedents moving in opposite directions. Two of them involved President Richard M. Nixon.
In 1974, in the case United States v. Nixon, the court ruled that Nixon, then still in office, had to comply with a subpoena requesting recordings of his conversations in the Oval Office, thereby rejecting his claims of executive privilege.
“Neither the doctrine of separation of powers nor the need for confidentiality of high-level communications, without more, can support an absolute and unqualified presidential privilege of immunity from judicial process in all circumstances,” the judge wrote in Chief Warren E. Burger.
Eight years later, in Nixon v. Fitzgerald, the court voted 5-4 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 criticisms of cost overruns. By the time the court ruled, Nixon had been out of office for several years.
“Given the special nature of the President’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we believe it is appropriate to recognize absolute presidential immunity in matter of liability for damages for acts committed within the “external perimeter” of power. his official responsibility.
The appeals court 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 case recorded in the Oval Office tapes, the panel wrote: “totally immunizing the president from the criminal justice process would disrupt “the primary constitutional duty of the judiciary to administer justice in criminal proceedings.
The second decision, from a civil action, was less informative, the panel wrote. “In considering the question of presidential immunity,” the ruling said, “the Supreme Court was careful to note that its findings on civil liability do not apply to criminal prosecutions.”