Courts & Litigation Democracy & Elections

Special Counsel Jack Smith Petitions the Supreme Court to rule on Trump’s Immunity Defense

Anna Hickey
Monday, December 11, 2023, 3:40 PM
Smith also filed a motion for expedited review in the D.C. Circuit to prevent delay of Trump’s Jan. 6 trial

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On Dec. 11, the government filed a petition for a writ of certiorari to the Supreme Court requesting the Court resolve the question of whether former president Donald Trump is immune from federal prosecution for crimes committed while in office. The Justice Department is seeking to bypass the U.S. Court of Appeals for the D.C. Circuit, filing the petition before that court has ruled. The government also filed a motion for expedited consideration of the petition by the Supreme Court and an “expedited merits briefing if the Court grants the petition.” Additionally, the Justice Department filed a motion to expedite Trump's appeal of Judge Chutkan’s ruling in the D.C. Circuit. On Dec. 1, Judge Chutkan rejected Trump’s motion to dismiss the federal election interference case against him on the grounds of presidential immunity. Trump filed an appeal of her ruling in the D.C. Circuit on Dec. 7. 

The government argues that if the case were to proceed without the Supreme Court’s expedited review, “it is unclear whether [the Supreme Court] would be able to hear and resolve the threshold immunity issues during its current Term.” The Justice Department notes that the Supreme Court in 1974 granted the then-special prosecutor’s petition for certiorari before appellate judgment in one of the Watergate cases less than four months before the trial was set to begin after the district court overseeing the case had denied former President Richard Nixon’s motion to quash a government subpoena seeking recordings from the Oval Office. The Court’s resolution of this constitutional question preceding United States v. Nixon, according to the government, should guide the Court to similarly review and resolve Trump’s immunity appeal. Trump’s Jan. 6 trial is currently set to begin on Mar. 4, 2024.

In the government’s motion in the D.C. Circuit for expedited review, the Justice Department writes that if the Supreme Court does not grant the government’s petition for certiorari before the D.C. Circuit issues a decision, expedited review in the D.C. Circuit would leave the Supreme Court with sufficient time to resolve the case during its current term. 

Read the petition for a writ of certiorari here or below:

Read the government’s motion for expedited consideration of the petition by the Supreme Court here or below:

Read the motion for expedited review in the D.C. Court of Appeals here or below:

Anna Hickey is the associate editor for communications of Lawfare. She holds a B.A. in interdisciplinary studies: communications, legal studies, economics, and government with a minor in international studies from American University.

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