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Trump’s lawyers ask Supreme Court to stay out of dispute on whether he is immune from prosecution

The Court was urged to rule over his immunity to prevent any delays that could postpone the trial of the Republican presidential primary front-runner until after next year’s election

Republican presidential candidate and former U.S. President Donald Trump
Republican presidential candidate and former U.S. President Donald Trump attends a campaign event in Waterloo, Iowa, U.S. December 19, 2023.SCOTT MORGAN (REUTERS)

Lawyers for former President Donald Trump urged the U.S. Supreme Court on Wednesday to stand down from a dispute over whether he can be prosecuted on charges he plotted to overturn the 2020 election results.

Special counsel Jack Smith’s team last week urged the nation’s high court to take up and quickly consider Trump’s claims that he enjoys immunity from prosecution as a former president. The unusual request for a speedy ruling seemed designed to prevent any delays that could postpone the trial of the 2024 Republican presidential primary front-runner, currently set to begin March 4, until after next year’s presidential election.

But Trump’s lawyers told the Supreme Court that there was no reason for them to take up the matter now, especially because a lower appeals court in Washington is already considering the same question and has scheduled arguments for Jan. 9.

“Importance does not automatically necessitate speed. If anything, the opposite is usually true. Novel, complex, sensitive, and historic issues — such as the existence of presidential immunity from criminal prosecution for official acts — call for more careful deliberation, not less,” Trump’s lawyers wrote.

With Trump facing four criminal cases and 91 felony counts as he seeks to reclaim the White House, a core aspect of his defense strategy has been to try to delay the prosecutions, including until after the election, to prevent them from interfering with his candidacy. In urging the Supreme Court to defer consideration of the immunity question, the defense lawyers are looking to avoid a quick and definitive answer that could push the case toward trial early next year.

“This appeal presents momentous, historic questions. An erroneous denial of a claim of presidential immunity from criminal prosecution unquestionably warrants this Court’s review,” the lawyers wrote. But, they added, that does not mean that the court should take “the case before the lower courts complete their review.”

They also said that the special counsel’s push to get the case to trial swiftly creates the appearance of political motivation: “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.”

A separate question before the court is Trump’s argument, also already rejected by Chutkan, that he cannot be prosecuted in court for conduct for which he was already impeached — but then acquitted — before Congress.

The Supreme Court has indicated that it will decide quickly whether to hear the case but has not said what it will ultimately do.

At issue is Trump’s claim that he is entitled to immunity for actions he took as part of his official duties as president. U.S. District Judge Tanya Chutkan, who is presiding over the case, rejected that argument earlier this month.

Trump’s team then appealed to the U.S. Court of Appeals for the D.C. Circuit, but Smith took the unusual step of attempting to bypass the appeals court — the usual next step in the process — and asking the Supreme Court take up the matter directly.

“The United States recognizes that this is an extraordinary request. This is an extraordinary case,” prosecutors wrote in asking for the Supreme Court’s intervention.

In their brief, Trump’s lawyers acknowledged that an “erroneous denial of a claim of presidential immunity from criminal prosecution unquestionably warrants this Court’s review.”

The Supreme Court is expected to soon be asked to weigh in another Trump case with major political implications. Trump’s lawyers have vowed to appeal to the high court a decision on Tuesday barring him from Colorado’s ballot under Section 3 of the 14th Amendment, which prohibits anyone who swore an oath to support the Constitution and then “engaged in insurrection” against it from holding office.

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