Supreme Court agrees to quick review of Trump’s presidential immunity claim

WASHINGTON (CN) — The Supreme Court agreed on Monday to review a fast-tracked petition asking if Donald Trump can use his status as a former president to claim immunity from criminal charges related to his effort to overturn the 2020 election. 

The order came only hours after Special Counsel Jack Smith asked the justices to expedite consideration of Trump’s presidential immunity claim in his D.C. prosecution for election interference leading up to the Jan. 6, 2021, insurrection. The decision is not an agreement to hear Smith's case, but rather an agreement to review his petition faster than normal.

“This case presents a fundamental question at the heart of our democracy: whether a former president is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin,” Michael Dreeben, counselor to the special counsel, wrote in a petition before the court. 

Agreeing to consider the petition crosses one major barrier for Smith, who bypassed the appeals court to put the question before the high court. The justices could still decide the D.C. Circuit needs to hear the case first, but there is precedent for skipping that step in significant cases such as this one.

The unsigned order from the court did not provide any additional information on the reasoning behind agreeing to quickly review Smith's petition. Trump was instructed to respond to the petition before Dec. 20.

Last week the former president asked an appeals court to review a ruling that rejected the defense. Trump said the appeal warranted a pause on Smith’s prosecution. Smith wants the justices to answer that question in the near future to avoid delaying the trial. 

“This case involves an issue of exceptional national importance: the amenability to federal prosecution of a former president of the United States for conduct undertaken during his presidency and the effect, if any, that his acquittal in impeachment proceedings has on this federal prosecution,” the government’s motion to expedite reads. 

Smith said only the Supreme Court can provide a final answer to such an important question, so the justices should do so as soon as possible. To support Smith’s arguments, the government cites Supreme Court precedent concerning another president, United States v. Nixon. 

The government notes the high court agreed to decide if former President Richard Nixon should have to give over evidence in the Watergate conspiracy trial only one week after the government petitioned the court. The court heard arguments only a week after the justices had been briefed and issued an opinion only two weeks later. Only taking two months total, the extremely expedited timeline is rare but possible according to precedent. 

“As in Nixon, the circumstances warrant expedited proceedings at the certiorari stage and, if the court grants review, on the merits,” the government wrote. “The public importance of the issues, the imminence of the scheduled trial date, and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.” 

Trump’s immunity defense stems from another Nixon case before the court, Nixon v. Fitzgerald, where the justices said a former president had immunity from civil suits related to official duties. 

Trump is charged with four criminal counts — not civil — making his case different than Nixon’s. Trump would also have to prove that his election interference efforts were part of his official job as president of the United States. 

The former president also claims impeachment hearings following the Jan. 6 insurrection cleared him of his role in the incident. Trump claims that putting him on trial in D.C. violates double jeopardy. 

U.S. District Judge Tanya Chutkan rejected both of Trump’s arguments, finding that former presidents don’t get a lifelong “get-out-of-jail-free” pass. 

The D.C. Circuit has not had a chance to review Trump’s appeal, though it reviewed a similar case brought by Democratic lawmakers and police officers. The appeals court dismissed Trump’s immunity claim in that case. 

Trump and Smith do agree on one issue — this question must be answered for the case to move forward. 

“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,” Dreeben wrote. “Respondent’s claims are profoundly mistaken, as the district court held. But only this court can definitively resolve them.” 

Follow @KelseyReichmann

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