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Spokane, Washington  Est. May 19, 1883

U.S. prosecutors ask Supreme Court to quickly take up Trump immunity claims

Special counsel Jack Smith announces D.C. indictment of former president Donald Trump during a news conference on Aug. 1, in Washington.    (Ricky Carioti/The Washington Post)
By Devlin Barrett, Perry Stein, Robert Barnes and Rachel Weiner Washington Post

Special counsel Jack Smith on Monday asked the Supreme Court to quickly consider former president Donald Trump’s claims that he is immune from prosecution for alleged election obstruction in 2020 - an aggressive legal move designed to keep Trump’s trial on track for early next year.

The filing by the prosecutor seeks to essentially leapfrog past an appeals court process that could take months to resolve. A lengthy appeal could slow down the Justice Department’s push for a March trial of Trump, who is the front-runner for the 2024 GOP presidential nomination.

“It is of imperative public importance that respondent’s claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” the filing from Smith’s team argues.

Trump’s legal team had earlier asked that the charges against him be dismissed, arguing that presidential immunity protects him from prosecution in this case involving his conduct during his waning days in office. U.S. District Judge Tanya S. Chutkan ruled against him, and Trump plans to appeal that ruling.

That appeal, however, could take months and significantly delay the start of the trial. So Smith - the federal prosecutor appointed by Attorney General Merrick Garland to lead the investigation of Trump - is seeking to speed up the process.

Smith argued in the filing that Trump’s legal claims of immunity “are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”

Therefore, Smith’s team argues, the Supreme Court should take up the issue now “to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon.”

United States v. Nixon was the Supreme Court’s landmark decision that ordered President Richard Nixon to deliver White House tapes and other documents to a federal district court - a unanimous ruling that a president does not have immunity from subpoenas or other court actions. The Supreme Court expedited consideration of that case, and delivered its opinion three weeks after oral argument.

Also on Monday, the special counsel filed a motion asking for expedited review of the immunity decision in the federal appeals court in Washington, D.C. - a court that is a step below the Supreme Court - in case the Supreme Court chooses not to take up the case immediately.

A swifter appeal process in the appeals court, the prosecutors wrote, would still get the case to the Supreme Court by next summer.

Smith’s proposed briefing schedule in D.C. would give Trump 10 days to appeal Chutkan’s ruling that Trump is not immune from prosecution. Smith would then allow the government a week to respond, and Trump three days to reply to that response.

Even if the court agrees to that schedule, the appeals court judges can take as long as they want to render a decision. When Trump claimed immunity from any civil lawsuit over his actions on and around Jan. 6, 2021, oral argument was held in December 2022; but the decision - with the appeals court ruling against him - just came out this month.

The D.C. election-obstruction case is one of four criminal prosecutions Trump is facing. He is also charged with illegally trying to block the 2020 election results in Georgia, and faces federal charges in Florida of mishandling classified documents after leaving the White House and obstructing government efforts to get them back. In addition, he is charged in state court in New York with falsifying business records in connection with a hush money payment during the 2016 election.