Special Counsel Jack Smith called Thursday for the U.S. Supreme Court to make an "immediate, definitive decision" on whether former President Donald Trump has "immunity" from criminal prosecution that would negate the historic charges slated for federal trial in March.
"The public interest in a prompt resolution of this case favors an immediate, definitive decision by this Court," the special counsel wrote in an 11-page reply brief that came in response to Trump's lawyers urging the justices to stay out of their dispute over immunity — for now.
Smith's team countered that the Supreme Court needs to get involved now.
"The charges here are of the utmost gravity," the special counsel's office wrote. "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. 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."
Smith's office argued that the Supreme Court's handling of United States v. Nixon supports the argument for taking up highly consequential cases early and expediting proceedings. In that landmark case, the Supreme Court addressed the controversy of whether the president had a constitutionally-based privilege to withhold evidence from trial. The court took up the case four months before the trial of former President Richard Nixon's alleged Watergate conspirators and resolved it 16 days after arguments.
"Here, the stakes are at least as high, if not higher: the resolution of the question presented is pivotal to whether the former President himself will stand trial — which is scheduled to begin less than three months in the future," Smith's office wrote.
Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial is scheduled to begin on March 4, the day before Super Tuesday when 14 states vote including California, Colorado, North Carolina, Texas and Virginia.
Trump's appeal centers on U.S. District Judge Tanya Chutkan's 48-page order on Dec. 1 denying Trump's motion to dismiss the charges on the grounds that he couldn't be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."
In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.
Trump's legal team responded to Chutkan's denial by filing both an appeal with the D.C. Circuit Court of Appeals seeking reconsideration of the motion to dismiss charges and a motion to "stay," or pause, the proceedings in the case "pending the final resolution of his recently filed appeal." Chutkan on Dec. 13 granted Trump's motion to pause progress toward trial in the case while the appeal is pending.
Jack Smith and Donald Trump Drew Angerer/Getty Images; Justin Sullivan/Getty Images
A three-judge panel of the D.C. Circuit Court of Appeals on Monday scheduled oral arguments for Jan. 9, 2024 on the appeal.
Meanwhile, Smith's office, which has sought to prevent delays in the case's progress toward trial, on Dec. 11 petitioned the Supreme Court to take the unusual step of hearing the "immunity" appeal before the D.C. Circuit Court of Appeals issues a judgment.
While the Supreme Court almost never accepted such pre-judgment petitions in the past – granting only four between 1988 and 2004 – the high court has been more open recently, granting 14 such petitions between 2019 and 2022. Nevertheless, as Smith’s office acknowledged in its petition, it is a rare move.
"The United States recognizes that this is an extraordinary request,” Smith’s office wrote in its petition. “This is an extraordinary case."
The Supreme Court has agreed to expedite its consideration of whether to take up the case. It is among a growing number of legal matters concerning Trump that the high court is expected to handle in the coming months.
The D.C. Court of Appeals also agreed to hear Trump's appeal on an expedited basis, a development that Smith's office said in Thursday's filing reflected the importance and urgency of the case.
"The court’s expedited schedule reflects the high importance of resolving this appeal rapidly," Smith's office wrote. "But only this Court can provide final resolution of the important constitutional issues raised. And the court of appeals’ expedited briefing and argument schedule does 6 not assure an appellate decision that will give this Court adequate time to grant review, receive briefing, hold argument, and resolve this case in advance of the scheduled trial date, or even this Term."