Supreme Court Won’t Fast-Track Review Trump’s Immunity From Prosecution

WASHINGTON — The Supreme Court said Friday that it will not fast track deciding whether former President Donald Trump is immune from charges that he conspired to overturn the results of the 2020 election, leaving the question in the hands of a D.C. appellate court — at least for the time being.

As is their custom, the justices did not explain the rationale for their decision. The one sentence order says only, “The petition for a writ of certiorari before judgment is denied.” 

The court’s answer, issued the Friday before Christmas, is sure to be interpreted by the former president’s supporters as a victory for Trump and an early present of sorts.

It will also likely be seen as a blow to Special Counsel Jack Smith who had filed the emergency petition seeking to bypass the review by the U.S. Court of Appeals for the D.C. Circuit.

On its face, the decision appears likely to delay the start of the criminal trial against Trump, which was scheduled to begin on March 4 in Washington.

The Court of Appeals is scheduled to hear arguments in the case on Jan. 9, and then, presumably, the case will be brought back to the Supreme Court by the losing side.

But the time table for decisions and filings and proceedings is now anybody’s guess, and any significant delay could push the outcome of the trial past the 2024 election.

If that were to happen, and Trump were to win, he could then simply order that the prosecution end.

As previously reported by The Well News, Trump was set to go to trial on March 4 on charges he allegedly engaged in a systematic and deliberate effort to overturn the results of the 2020 presidential election and prevent the lawful transfer of power to his successor. 

On Dec. 7, U.S. District Judge Tanya Chutkan rejected the former president’s motion to toss the election interference case on the grounds that his being an ex-president shields him from the charges.

In denying Trump’s motion, Chutkan concluded that nothing in the Constitution or subsequent history of the United States shields a former president from “federal investigation, indictment, prosecution, conviction and punishment for any criminal acts undertaken while in office.”

She also rejected Trump’s assertion that his acquittal in impeachment proceedings gave him protection under double-jeopardy principles or the impeachment judgment clause against his criminal prosecution after leaving office.

Trump appealed that decision to the D.C. Circuit, and Smith then filed a petition with the Supreme Court, asking the justices to resolve the immunity question without waiting for the D.C. Circuit to weigh in.

In a 10-page reply brief, former Deputy U.S. Solicitor General Michael Dreeben, representing Smith, argued that Trump’s suggestion that the justices should wait for the appellate process to unfold … so that the court has “the benefit of the court of appeals’ decision” is “misguided.”

“The public interest in a prompt resolution of this case favors an immediate, definitive decision by this court,” Dreeben wrote. “The charges here are of the utmost gravity. This case involves — for the first time in our nation’s history — criminal charges against a former president based on his actions while in office. And not just any actions: alleged acts to perpetuate himself in power by frustrating the constitutionally prescribed process for certifying the lawful winner of an election,” he says.

“The nation has a compelling interest in a decision on respondent’s claim of immunity from these charges — and if they are to be tried, a resolution by conviction or acquittal, without undue delay,” he continues.

“Given respondent’s categorical immunity claim over every act alleged in the indictment — all of which, he contends, fall within the outer perimeter of his ‘official’ duties … this court’s review is essential to allow this case to move forward,” Dreeben argued.

Several times in the brief, Dreeben tried to convince the justices that Trump’s arguments provided “no sound reason to deny immediate review.”

“He asserts that the government lacks standing to bring an appeal. But the government is not seeking to appeal the district court’s order,” he explained. “[Trump] himself has appealed that order.

“The petition asks this court to grant certiorari before judgment in a case that is already pending in the Court of Appeals — as the court has often done at the behest of parties that prevailed in district court,” he continued.

“And although a full response to respondent’s immunity arguments can await briefing on the merits, respondent errs in asserting that the district court overlooked important aspects of the question,” Dreeben wrote.

“To the contrary, respondent repeats arguments that the district court carefully considered and rejected,” he says.

“Finally,” Dreeben said, “respondent’s claims about the reasons why the government is seeking review are unfounded and incorrect.”

Trump has claimed his prosecution is entirely politically motivated and intended to keep him from winning back the presidency in the 2024 election.

“Respondent stands accused of serious crimes because the grand jury followed the facts and applied the law. The government seeks this court’s resolution of the immunity claim so that those charges may be promptly resolved, whatever the result,” Dreeben concluded.

Dan can be reached at [email protected] and @DanMcCue