Both Trump and Special Counsel Smith have now taken presidential immunity question to the Supreme Court

 February 16, 2024

Former President Donald Trump's claim of presidential immunity from criminal prosecution in his federal election interference case was rejected by both the D.C. District Court and a D.C. Circuit Court panel, with the latter court's ruling including an order for pre-trial proceedings to resume in the former court, which paused everything pending a final resolution of Trump's appeal.

On Monday, Trump further appealed the matter to the Supreme Court and requested a stay to keep the lower court's proceedings paused pending either a rehearing by the full circuit court or a review of the panel's decision by the high court, SCOTUSblog reported.

It is not yet clear if the Supreme Court will grant Trump's request -- though it seems more likely than not, given the serious and unprecedented nature of the situation -- and the high court gave Special Counsel Jack Smith one week to respond, signaling the justices wanted to hear both sides before deciding whether to take action on the case.

Trump seeks further delay in consideration of his immunity claims

In former President Trump's application for a stay that essentially doubled as a petition for review, it was argued that the district and circuit courts were wrong to reject his claim of presidential immunity from prosecution and dire warnings were issued about the trouble future presidents would face without that protection from politically motivated post-presidency prosecutions.

Indeed, that threat would "hang like a millstone around every future President’s neck," would be used as a "political cudgel" by partisan opponents to "blackmail" and "extort" future presidents, and would "become ubiquitous, hanging over every President like a sword of Damocles" -- preventing them from acting to fulfill their duties without fear of politically motivated retribution upon leaving office.

Trump further argued that the requested stay of the circuit panel's decision -- which would have the effect of keeping the district court proceedings indefinitely paused -- was necessary so that either the full circuit court or the Supreme Court, if not both, would have sufficient time to thoughtfully consider all of the merits of his various arguments in favor of absolute presidential immunity.

That includes his assertions that presidents are essentially immune from prosecution for life for official acts during their presidency, both due to presidential immunity as well as the U.S. Constitution's impeachment clause -- which he claims only allows prosecution following an impeachment conviction in the Senate but not following an acquittal -- and the principle of "double jeopardy" that prevents multiple prosecutions for the same alleged crimes.

Smith disputes Trump's claims, demands court move quickly to reject Trump's requests

SCOTUSblog reported separately on Thursday that despite being granted a week to respond to former President Trump's application for a stay and petition for review, Special Counsel Smith wasted little time and filed his 40-page response just two days later.

Speed is the name of the game for Smith, as he seeks a resumption of the district court proceedings as soon as possible, and he urged the Supreme Court to reject Trump's request for a stay and further review, though failing that he also asked that everything be expedited on a rapid timeline if Trump's requests were granted.

Unsurprisingly, Smith vehemently disagreed with Trump's assertions about presidential immunity and issued dire warnings of his own about the dangers posed to the nation and democracy itself if the former president was not tried for his alleged election-related crimes with great haste.

Timing of the trial and election weigh heavily over the proceedings

Conspicuously absent from Special Counsel Smith's response filing was any direct mention of the impending presidential election in November, though it was frequently referenced indirectly throughout the filing by way of his repeated admonitions for the Supreme Court to address the matter one way or another without further delay.

In fact, there is little doubt among most legal analysts that it is a primary motivating factor for the federal prosecutor's push to swiftly resolve the question of Trump's immunity, as he quite clearly hopes to bring Trump to trial and win a conviction, if not also see the former president sentenced, before voters cast their ballots in the upcoming election.

Trump, on the other hand, has also not been coy about his overt desire to keep the legal proceedings paused indefinitely, at least until after the election has been held, presumably on the belief that, if he wins re-election, he can order the charges against him dropped or issue himself a pardon.

The key difference here is that Trump, as the defendant, faces no prohibitions against the political motivations behind his demand for due process in these proceedings, while Smith, as a federal prosecutor, is specifically prohibited from being motivated by partisan concerns or using a prosecution as a means to interfere in an election.

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