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Special counsel asks Supreme Court to move quickly on the Trump immunity case

Insurrections loyal to President Donald Trump at the U.S. Capitol in Washington, D.C., on Jan. 6, 2021.
Jose Luis Magana
Insurrections loyal to President Donald Trump at the U.S. Capitol in Washington, D.C., on Jan. 6, 2021.

WASHINGTON — Special counsel Jack Smith urged the U.S. Supreme Court on Wednesday to let former President Donald Trump's 2020 election interference case proceed to trial without further delay.

Prosecutors were responding to a Trump team request from earlier in the week asking for a continued pause in the case as the court considers whether to take up the question of whether the former president is immune from prosecution for official acts in the White House. Two lower courts have overwhelmingly rejected that position, prompting Trump to ask the high court to intervene.

The case — one of four criminal prosecutions confronting Trump — has reached a critical juncture, with the Supreme Court's next step capable of helping determine whether Trump stands trial this year in Washington or whether the proceedings are going to be postponed by weeks or months of additional arguments.

The trial date, already postponed once by Trump's immunity appeal, is of paramount importance to both sides. Prosecutors are looking to bring Trump to trial this year while defense lawyers have been seeking delays in his criminal cases. If Trump were to be elected with the case pending, he could presumably use his authority as head of the executive branch to order the Justice Department to dismiss it or could potentially seek to pardon himself.

Reflecting their desire to proceed quickly, prosecutors responded to Trump's appeal within two days even though the court had given them until next Tuesday.

Though their filing does not explicitly mention the upcoming November election or Trump's status as the Republican primary front-runner, prosecutors described the case as having "unique national importance" and said that "delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict."

"The national interest in resolving those charges without further delay is compelling," they wrote.

Smith's team charged Trump in August with plotting to overturn the results of the 2020 presidential election, including by participating in a scheme to disrupt the counting of electoral votes in the run-up to the Jan. 6, 2021, riot at the U.S. Capitol, when his supporters stormed the building in a violent clash with police.

"The charged crimes strike at the heart of our democracy. A President's alleged criminal scheme to overturn an election and thwart the peaceful transfer of power to his successor should be the last place to recognize a novel form of absolute immunity from federal criminal law," they wrote.

Trump's lawyers have argued that he is shielded from prosecution for acts that fell within his official duties as president — a legally untested argument since no other former president has been indicted.

The trial judge and then a federal appeals court rejected those arguments, with a three-judge appeals panel last week saying, "We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter."

The proceedings have been effectively frozen by Trump's immunity appeal, with U.S. District Judge Tanya Chutkan canceling a March 4 trial date while the appeals court considered the matter. No new date has been set.

Trump's appeal and request for the Supreme Court to get involved could cause further delays depending on what the justices decide. In December, Smith and his team had urged the justices to take up and decide the immunity issue, even before the appeals court weighed in. But the court declined.

The Supreme Court's options include rejecting the emergency appeal, which would enable Chutkan to restart the trial proceedings in Washington's federal court. The court also could extend the delay while it hears arguments on the immunity issue. In that event, the schedule the justices set could determine how soon a trial might begin, if indeed they agree with lower court rulings that Trump is not immune from prosecution.

On Wednesday, prosecutors urged the court to reject Trump's petition to hear the case, saying that lower court opinions rejecting immunity for the former president "underscore how remote the possibility is that this Court will agree with his unprecedented legal position."

But if the court does wants to decide the matter, Smith said, the justices should hear arguments in March and issue a final ruling by late June.

Prosecutors also pushed back against Trump's argument that allowing the case to proceed could chill future presidents' actions for fear they could be criminally charged once they leave office and open the door to politically motivated cases against former commanders-in-chief.

"That dystopian vision runs contrary to the checks and balances built into our institutions and the framework of the Constitution," they wrote. "Those guardrails ensure that the legal process for determining criminal liability will not be captive to 'political forces,' as applicant forecasts."

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