Supreme Court gives Special Counsel Smith one week to respond to Trump request for stay and review on immunity question

 February 14, 2024

On Monday, former President Donald Trump filed a motion with the Supreme Court seeking intervention and a stay imposed upon the D.C. Circuit Court of Appeals panel's ruling against his claim in the federal election interference case of presidential immunity from criminal prosecution for official acts conducted while he still served as president.

The Supreme Court on Tuesday gave Special Counsel Jack Smith one week -- until Tuesday, Feb. 20 -- to file a response to Trump's application for a stay that doubles as a petition for the high court to more broadly review the appellate court's ruling, The Hill reported.

If the Supreme Court declines to issue the requested stay, or ultimately also rules against Trump's immunity claims, the circuit court's decision will trigger a resumption of the D.C. trial court's proceedings -- and its tentative March 4 trial start date -- that was previously placed on hold indefinitely pending a final resolution of the presidential immunity question.

Trump heads to Supreme Court over presidential immunity issue

At issue here in former President Trump's 39-page application for a stay and petition for review is the assertion that both the D.C. District Court and the D.C. Circuit's three-judge panel were wrong to reject his claim of presidential immunity from criminal prosecution for official acts while he was still president.

Trump argued at length about how that rejection, if not overturned, threatened to upend 234 years of tradition of presidential immunity and would set a dangerous precedent that would result in all future presidents facing an ever-present threat of politically motivated criminal prosecution by partisan opponents as soon as their tenure in office ended.

Indeed, the threat of prosecution would "hang like a millstone" around every future president's neck, "become a political cudgel" to intimidate and manipulate future presidents, and would ultimately "become ubiquitous, hanging over every President like a sword of Damocles."

That, of course, would negatively impact any president's ability to do their duties without fear or hesitation fly in the face of the Founders' efforts to establish separation of powers between co-equal branches of government as well as the deliberately arranged impeachment process that only allows a president to be prosecuted, civilly or criminally, after they have first been convicted and removed from office by two-thirds of the Senate following impeachment by a majority of the House.

Trump requested a stay to allow time for further review

SCOTUSblog reported that former President Trump's filing on Monday asked the Supreme Court for a stay on the D.C. circuit court panel's ruling that, if left untouched, would permit the D.C. district court's pre-trial schedule to resume even though the immunity issue has not yet been fully resolved.

As noted, the request for a stay also doubled as a petition for review of the circuit panel's immunity ruling by the Supreme Court, though failing that, Trump alternatively asked for the stay so that he could pursue the normal appellate process with a request for an en banc hearing by the entire D.C. Circuit Court.

The former president's requests will be initially handled by Chief Justice John Roberts, who holds jurisdiction over the lower courts in D.C., who will then likely bring the matter before his colleagues in a conference to determine whether to grant the desired stay as well as whether to review the lower courts' rulings on the immunity question.

This is what Smith said he wanted ... sort of

Special Counsel Jack Smith has now been placed in a uniquely odd position of his own making in that he must now essentially side with former President Trump's request for Supreme Court intervention if he has any hopes of not exposing himself to the public to be a grossly inconsistent hypocrite.

Recall that, following the D.C. district court's ruling in December, Smith attempted to bypass the D.C. Circuit and seek immediate review at the Supreme Court of the presidential immunity issue that he insisted was "of paramount importance" and needed to be "resolved as expeditiously as possible."

That said, regardless of the risks of negative public perception, Smith will likely now seek to oppose the stay as well as any further review by the Circuit or Supreme Courts and instead rest on the appellate panel's ruling in his favor that, if not overturned, would restart the district court's proceedings that Smith so desperately wants to get going again.

That is because, though he'll likely never openly admit it, Smith's entire longshot partisan legal gambit is based on the prospect of bringing Trump to trial and gaining a conviction, if not also imprisonment, before the November election, so as to theoretically disqualify -- at least in the eyes of voters -- and prevent the former president from winning re-election.

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