SCOTUS NEWS

“Haste makes waste,” Trump lawyer tells justices in opposing review of immunity issue now

Lawyers for former President Donald Trump urged the Supreme Court on Wednesday afternoon to turn down a request from Special Counsel Jack Smith to decide now whether Trump can be tried on criminal charges that he conspired to overturn the results of the 2020 election.

Lawyer D. John Sauer acknowledged that an “erroneous denial of a claim of presidential immunity from criminal prosecution unquestionably warrants” Supreme Court review. But that question, Sauer posited, should “be resolved in a cautious, deliberative manner,” Sauer emphasized, “not at breakneck speed.”

The 34-page filing on Wednesday afternoon came in response to a request from Special Counsel Jack Smith, who last week asked the court to rule on whether Trump is entitled to immunity without waiting for the U.S. Court of Appeals for the District of Columbia Circuit to weigh in.

Earlier this month, U.S. District Judge Tanya Chutkan rejected Trump’s claim that he cannot be prosecuted because his conduct was part of his responsibilities as president or, alternatively, because he had already been impeached, but not convicted, on charges arising from the same conduct.

Trump has appealed that decision to the D.C. Circuit, which has scheduled oral argument in the case for Jan. 9.

But even before the D.C. Circuit agreed to fast-track the case, Smith came to the Supreme Court, telling the justices that unless the immunity case leapfrogs over the D.C. Circuit now, “it is unclear whether this Court would be able to hear and resolve the threshold immunity issues during its current Term” – and, as a result, before the 2024 elections.

In a separate filing on the same day, Smith asked the justices to expedite their consideration of his petition. The justices quickly signaled that they would do so: In an order issued several hours later, they directed Trump to file his response in just 9 days – three weeks short of the normal deadline for such briefs.

But in the brief that he filed on Trump’s behalf on Wednesday, Sauer pushed back sharply against the idea that the Supreme Court needs to step in now. If anything, he suggested, they need to move cautiously, rather than quickly. And any delay from waiting for the court of appeals to act first, as the Supreme Court normally prefers to do, will be minimal, Sauer wrote, when the D.C. Circuit has already “dramatically expedited proceedings on appeal.”

Sauer attributed Smith’s desire to have the immunity issue resolved quickly to partisan motives – specifically, to “ensure that President Trump—the leading Republican candidate for President, and the greatest electoral threat to President Biden—will face a months-long criminal trial at the height of his presidential campaign.” And Sauer cautioned that Smith’s “request threatens to tarnish this Court’s procedures with the same appearance of partisanship.”

Sauer also argued that the Supreme Court does not have the authority to consider the case at all because Smith prevailed in the lower court. The possibility that Trump’s trial could be delayed is not attributable to Chutkan’s ruling, Sauer said, and therefore the government has not suffered the kind of injury that would allow Smith to file an appeal.

Trump’s trial is currently scheduled to begin on March 4, 2024. But that date is likely in jeopardy, for two reasons. First, Chutkan recently agreed with Trump that his appeal to the D.C. Circuit largely put on hold all pretrial proceedings and discovery, making it harder for prosecutors to keep the case moving forward.

Second, the Supreme Court announced on Dec. 13 that it will decide whether the same federal law at issue in Trump’s case can be used to prosecute a participant in the Jan. 6 attacks on the U.S. Capitol. Because the court’s ruling in that case, Fischer v. United States, could affect the charges against Trump even if the justices ultimately rule that he is not immune from prosecution, it too could delay the March 4 trial date.