Special counsel Jack Smith asked the Supreme Court Monday to weigh in on claims by former President Donald Trump’s lawyers that their client enjoys immunity from his federal indictment in connection with the Jan. 6, 2021, Capitol riot.
“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,” Smith wrote in an 81-page petition to the high court filed Monday.
He added that the request was “of imperative public importance” as the former president is scheduled to head to trial on March 4, 2024, and Trump’s attorneys have already appealed a district court ruling against blanket immunity.
Even with a “highly expedited” appeals process, Smith added, “it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term” — which ends around four months before the 2024 election.
Smith’s petition asks for a response by Dec. 18 — and a resolution to the constitutional questions presented within mere weeks should the justices take up the issue.
Trump’s lawyers had argued the former president’s attempts to contest his 2020 loss to President Biden fell within the “outer perimeter” of his official responsibilities.
The special counsel also noted that “precedent supports expeditious action,” referencing the Supreme Court’s 1974 ruling in United States v. Nixon.
In that case, former President Richard Nixon was denied executive privilege and forced to comply with a special prosecutor’s subpoena for audio recordings central to the Watergate investigation.
“As in Nixon, ‘the public importance of the issues presented and the need for their prompt resolution’ merit this Court’s intervention now, without awaiting the completion of appellate proceedings,” Smith argued.
“And as in Nixon, that is true even though the district court correctly denied respondent’s presidential-immunity and related double-jeopardy claims,” he added.
The double-jeopardy claims stated that Trump was immune from prosecution since he had been impeached in the House for incitement of insurrection on Jan. 6, 2021, but acquitted by the Senate.
A separate Supreme Court ruling — Nixon v. Fitzgerald — provides presidents with mere “civil immunity” while conducting their official duties, Smith also noted, but not an “absolute shield from criminal liability.”
“A cornerstone of our constitutional order is that no person is above the law,” he wrote. “The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor.”
On Dec. 1, US District Judge Tanya Chutkan rejected Trump’s motion to dismiss the four-count indictment against him for attempting to overturn 2020 election results in Washington, DC, which culminated in the breach of the US Capitol building by a mob of his supporters.
Trump, 77, who pleaded not guilty to all charges, is the runaway front-runner for the 2024 Republican presidential nomination, leading the field by more than 47 percentage points, according to the RealClearPolitics polling aggregator.
He is scheduled to head to trial for the Jan. 6 case on March 4, 2024, the day before Super Tuesday in the GOP primary.