Washington — Former President Donald Trump has asked the Supreme Court to pause a lower court’s decision that rejected his broad claims of immunity from criminal prosecution in the federal case related to the 2020 election.
In a 39-page filing on Monday, Trump’s attorneys asked the justices to implement a “stay” of the by a three-judge panel in the Court of Appeals for the District of Columbia Circuit. The panel said it would delay enforcing its ruling until Feb. 12 to give Trump time to turn to the high court.
Five justices are needed to approve Trump’s request for emergency relief. Trump’s attorneys said the stay is necessary to give them time to seek further review of the ruling, either before the full D.C. Circuit or the Supreme Court itself. The filing indicates they will eventually ask the high court to settle the matter once and for all.
Trump’s filing said the D.C. Circuit panel’s decision represented “a stunning breach of precedent and historical norms.”
“Without immunity from criminal prosecution, the Presidency as we know it will cease to exist,” lawyers D. John Sauer and John Lauro wrote.
The appeals court decision
The three appeals court judges — Karen LeCraft Henderson, Michelle Childs and Florence Pan — ruled last week that Trump was not immune from prosecution in special counsel Jack Smith’s criminal case against him. The judges rejected the former president’s argument that he should be shielded from the charges because the conduct alleged in the federal indictment occurred while he was in office.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote in its opinion. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
A federal grand jury charged Trump last year with four counts stemming from an alleged attempt to unlawfully overturn the results of the 2020 presidential election. Trump pleaded not guilty to all charges and has denied wrongdoing.
The judges wrote that they “cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results.”
Adopting Trump’s argument, they continued, would mean “the Executive has carte blanche to violate the rights of individual citizens to vote and to have their votes count.”
The appeals court panel said its ruling would go into effect on Feb. 12 unless Trump asked the Supreme Court for emergency relief, or if the full appeals court agreed to hear the case after the deadline.
In their request for a stay, the former president’s legal team argued the high court has “compelling” reasons to pause the appeals court’s ruling pending further litigation. They said that the issue of presidential immunity from federal charges is a novel issue for the court to decide and that the criminal case against Trump would continue if the justices fail to act, tying the legal battle to his campaign to retake the White House.
“The Special Counsel seeks urgently to force President Trump into a months-long criminal trial at the height of campaign season, effectively sidelining him and preventing him from campaigning against the current President to whom the Special Counsel ultimately reports, President Biden,” the filing said. “This would impose grave First Amendment injuries on President Trump and all American voters, whether they support him or not, and threatens to tarnish the federal courts with the appearance of partisanship.”
They are asking the Supreme Court to consider whether the doctrine of presidential immunity extends to the criminal prosecution of a president for acts undertaken while in office, and whether a president’s impeachment by the House and acquittal by the Senate prevents prosecution for similar conduct.
The Supreme Court previously ruled in a 1982 decision involving Richard Nixon that presidents are immune from civil suits stemming from acts taken within their official duties.
Trump’s legal team argued that if a president is allowed to face charges, prosecutions will become “increasingly common, ushering in destructive cycles of recrimination.”
“The threat of future criminal prosecution by a politically opposed Administration will overshadow every future President’s official acts — especially the most politically controversial decisions,” Lauro and Sauer wrote. “The President’s political opponents will seek to influence and control his or her decisions via effective extortion or blackmail with the threat, explicit or implicit, of indictment by a future, hostile Administration, for acts that do not warrant any such prosecution.”
The attorneys directly took on the appeals court’s decision, claiming it misinterpreted past legal precedent and “commits a series of fundamental errors,” arguing the unanimous opinion ignored constitutional concerns about separation of powers. They argued that issues of this magnitude require time to decide and Trump’s criminal case should not be allowed to proceed until those matters are settled.
What comes next
In the filing on Monday, Trump’s lawyers indicated their next steps would be dictated by how the justices decide their request for a stay. The court has a 6-3 conservative majority and includes three justices appointed by Trump himself.
As additional relief, Trump is asking the court to keep the panel’s decision on hold pending the resolution of not only proceedings before the Supreme Court, but also his “planned” request for the full D.C. Circuit to reconsider the judges’ ruling. His lawyers said Trump plans to seek review from the full appeals court “in due course.”
If the D.C. Circuit declines to review the panel’s decision or rules against Trump, the former president could then ask the Supreme Court to step in. The Supreme Court could also grant a stay and decide to take up the issue immediately.
The former president first raised his claim of presidential immunity in October, when he asked U.S. District Judge Tanya Chutkan, who is overseeing the criminal case in D.C., to dismiss the charges. Chutkan denied the request and Trump later appealed the ruling to the D.C. Circuit.
The trial schedule in Chutkan’s court has since been on hold. Earlier this month, shethe March 4 trial date until the immunity question is settled.
Smith, the special counsel, asked the Supreme Court last month to leapfrog the appeals court and decide the immunity issue once and for all, but the high court declined to fast-track the case and instead let the appeals process continue. The special counsel’s office declined to comment on Trump’s filing on Monday.
The Supreme Court has never decided whether former presidents are entitled to criminal immunity for conduct that occurred while they were in the White House. Trump is the first former president in the nation’s history to be indicted.