Lower courts have already twice rejected the immunity claims, but Trump’s lawyers will get a fresh chance to press their case before the Supreme Court when the justices hear arguments on April 25. The high court’s decision to consider the matter has left the criminal case on hold pending the outcome of the appeal, making it unclear whether special counsel Jack Smith will be able to put the ex-president on trial before November’s election.
In a brief filed Tuesday, Trump’s lawyers repeated many of the same arguments that judges have already turned aside, asserting that a president “cannot function, and the Presidency itself cannot retain its vital independence, if the President faces criminal prosecution for official acts once he leaves office.”
“A denial of criminal immunity would incapacitate every future President with de facto blackmail and extortion while in office, and condemn him to years of post-office trauma at the hands of political opponents,” the lawyers wrote. “The threat of future prosecution and imprisonment would become a political cudgel to influence the most sensitive and controversial Presidential decisions, taking away the strength, authority, and decisiveness of the Presidency.”
Smith’s team has said ex-presidents do not enjoy absolute immunity and that, in any event, the steps Trump is accused of taking in his failed but frantic effort to remain in power after he lost to Democrat Joe Biden would not count as official presidential acts.
U.S. District Judge Tanya Chutkan, who is presiding over the case, and a three-judge federal appeals panel in Washington have both agreed with Smith, but the case — once scheduled for trial on March 4 — has been effectively frozen for months as the appeal continues to wind through the courts.
Trump’s lawyers also told the justices that in the event they don’t accept his immunity arguments, they should send the case back to Chutkan for additional “fact-finding.” Such a move would result in even lengthier delays before a trial could be scheduled.
The case is one of four state and federal criminal prosecutions that Trump is facing as he seeks to reclaim the White House. He and his lawyers have sought to delay the cases from proceeding to trial, a strategy that to date has yielded some success for the ex-president.
Of those four, only one — a case in New York charging Trump in connection with hush money payments meant to suppress claims of an extramarital sexual encounter — is on track to start in the next several months. The judge in that case delayed the trial last week until at least mid-April as he seeks answers about a last-minute evidence dump that the former president’s lawyers said has hampered their ability to prepare their defense.
Tucker writes for the Associated Press.