Former President Donald Trump’s lawyers, who have repeatedly sought to delay his D.C. election subversion trial, on Wednesday asked the Supreme Court to hold off on reviewing special counsel Jack Smith’s appeal of Trump’s rejected immunity claim.
Trump’s lawyers appealed a ruling from U.S. District Judge Tanya Chutkan denying his claim that he has presidential immunity from prosecution in the election subversion case. But Smith, who has sought to maintain the pre-trial timeline to avoid a delay, asked the Supreme Court to take up the case, arguing it is "of imperative public importance" for the high court to decide on the question as quickly as possible.
The Supreme Court last week agreed to take up Smith’s request. But Trump’s lawyers on Wednesday asked the court to hold off on considering it until the appeals court reviews the matter — which could delay proceedings by weeks.
"In 234 years of American history, no president ever faced criminal prosecution for his official acts. Until 19 days ago, no court had ever addressed whether immunity from such prosecution exists," Trump's legal team wrote in a filing. "To this day, no appellate court has addressed it. The question stands among the most complex, intricate, and momentous issues that this Court will be called on to decide."
Trump’s lawyers accused Smith of pushing the Supreme Court to "rush to decide the issues with reckless abandon."
The legal team argued that Smith lacked standing to appeal the matter because Chutkan ruled in his favor. And they reiterated their argument that Trump’s speech and advocacy as president were protected by the First Amendment.
"An erroneous denial of a claim of presidential immunity from criminal prosecution for official acts warrants this Court's review — in due course," attorneys John Sauer, John Lauro and Todd Blanche wrote. "Yet importance does not automatically necessitate speed."
Chutkan rejected Trump’s presidential immunity argument, writing that the “position does not confer a lifelong 'get-out-of-jail-free' pass.”
Trump’s lawyers in their filing doubled down on their argument anyway, claiming that a president can only be prosecuted in impeachment proceedings by Congress.
"The Constitution opens the door to such prosecutions, but requires a strong political consensus — i.e., the participation of the political branches, including a supermajority of the U.S. Senate, the Republic's traditional 'cooling saucer' — before such a drastic action can be taken," they wrote.
University of Texas Law Prof. Lee Kovarsky pushed back on Trump’s argument that Smith lacks standing to appeal because he won the earlier ruling.
“This is not a serious argument. The Court can hear appeals from winners if there's a sufficiently strong policy reason,” he tweeted. “The standing argument is a touch more complicated, but it's not essentializing too much to say that it's bulls**t,” he added, explaining that Trump’s lawyers are conflating his case with cases about “whether 3rd parties without standing AT THE OUTSET OF LITIGATION can appeal when the primary party won't.”
Other legal experts called out Trump’s hypocrisy in urging the court to slow down his case.
“COMPARE: Trump’s filing in Supreme Court today (seeking to slow down the DC criminal case) TO his upcoming filing appealing the Colorado decision, where he will seek alacrity,” tweeted former Mueller prosecutor Andrew Weissmann, referring to the Tuesday ruling barring Trump from the primary ballot in Colorado.
“It would be easier for former President Trump to argue against cert. before judgment here if his Justice Department hadn't asked #SCOTUS to likewise leapfrog courts of appeals on 10 different occasions (in five of which the justices acquiesced),” added Steve Vladeck, a Supreme Court expert at the University of Texas Law School.
