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Trump Immunity Claims Head to Supreme Court

Court grants a rare appeal at the request of Jack Smith.

On Monday afternoon, December 11, the United States Supreme Court agreed to answer an “issue of imperative public importance” regarding Donald Trump’s criminal trial on charges related to trying to overturn the 2020 presidential election – a matter on which he faced his second impeachment shortly before leaving office. The Justices granted a rare request by Department of Justice Special Counsel Jack Smith to review a District Court’s ruling rather than wait for a Court of Appeals to hear the case. Trump has argued he is immune from prosecution on multiple grounds, and the Supreme Court will now settle the issue.

United States of America v. Trump

The Supreme Court has agreed to take this case, US v. Trump, to settle the following question:

“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.”

New banner Legal Affairs with ScottAmong several other civil and criminal cases, Donald Trump is on trial in a Washington, DC federal district court, brought there by Jack Smith, a special prosecutor chosen by President Biden’s attorney general, Merrick Garland. The case is being tried before Judge Tanya S. Chutkan, a President Barack Obama appointee.

Trump challenged the imposition of the charges against him, arguing separately that he couldn’t be charged for those crimes for actions committed while president and that his impeachment trial already served as criminal jeopardy, making these new charges unconstitutional.

Judge Chutkan rejected Trump’s arguments over immunity and double jeopardy, denying his motion to throw out the charges on December 1. The former president then appealed that ruling to the DC Circuit Court of Appeals. Jack Smith told the Supreme Court the nation couldn’t wait and that it (the Supreme Court) would ultimately have to handle the issue, so it should do so presently.

No Time Like the Present

The Justices granted what’s called certiorari before judgment, a seldom given review that bypasses the courts of appeals. Generally, cases that wind up in the Supreme Court are tried in state courts or federal trial courts, usually “District Courts,” and then are appealed to one of the nation’s 13 intermediate courts of appeal, called the “Circuit Court.” Then, a losing party appeals to the Supreme Court to hear the case. In this instance, Donald Trump’s prosecutor won the issue at the trial court and applied for rapid review to accelerate his opponent’s appeal.

Reports show fewer than fifty incidents of the Supreme Court granting certiorari before judgment since it first got the power to do so by the Judiciary Act of 1925. Many of the cases involve executive power, including, most famously, 1974’s US v. Nixon, resulting in the order that he turn over tape recordings and other subpoenaed materials to a federal court.

Presidential Cage Match

The Biden administration desperately wants Trump’s criminal trial conducted before the November 2024 presidential election. Leaving aside the urgency of the matter – and that’s a hard thing to do considering the political implications (a rapid trial benefitting Biden electorally and a delay favoring Trump) – it is a major stretch to think this issue would ever be resolved by the lower courts. The current president is trying to put the immediate past president in a cage for his conduct while in office. This was always going to wind up at the Supreme Court. The Justices have given President Trump until Wednesday, December 20, to file his reply.

Read More From Scott D. Cosenza, Esq.

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