More Than 20 State AGs Back Trump in Supreme Court Immunity Appeal

Former President Donald Trump appears at a court hearing on charges of covering up a hush money payment to an adult film actress in New York State Supreme Court in New York City, on Feb. 15, 2024. Brendan McDermid/Pool via Reuters

Twenty-two state attorneys general have joined an amicus brief asking the Supreme Court to accept former President Donald Trump’s appeal of a decision rejecting his presidential immunity claims in Washington.

The Feb. 16 brief targeted the speed at which special counsel Jack Smith and lower courts had moved on President Trump’s Jan. 6-related case. President Trump similarly described the U.S. Court of Appeals for the DC Circuit’s decision as “extraordinarily fast” while noting that his legal team only had four business days to file an appeal with the Supreme Court.

“Amici States represent millions of Americans, many of whom worry that the timing of this prosecution was calculated to silence or to imprison President [Joe] Biden’s political rival,” the attorneys general said.

“True or not, such fears are deeply corrosive. And by acquiescing in the rush to trial, the courts below have only amplified the perception of impropriety. Denying the stay would greenlight the prosecution to proceed at breakneck speed and to put the apparent frontrunner for the presidency on trial in the lead-up to the election. Granting a stay would calm the fervor, reassure the public, and permit the normal and orderly review of these weighty issues. Properly understood, the public interest demands a stay.”

The 22 attorneys general came from states that had voted for President Trump in the 2020 presidential election. They included Ohio, Florida, Texas, and others.

President Trump had requested delaying the trial until after the 2024 presidential election, but DC Judge Tanya Chutkan refused. She initially had planned for the trial to start on March 4, just a day before Super Tuesday, but that date was postponed as President Trump appealed her rejection of his motion to dismiss on grounds of presidential immunity. Mr. Smith also asked the Supreme Court to fast-track the appeal—something the DC Circuit ultimately did—but the justices declined his request.

Loss of ‘Public Trust’

Mr. Smith announced the Justice Department’s Washington indictment of President Trump in August 2023. It’s one of four criminal trials—including another brought by Mr. Smith in Florida—that President Trump is facing during the 2024 presidential election cycle.

Mr. Smith submitted a brief opposing President Trump’s application for a stay, arguing that delay “threatens to frustrate the public interest in a speedy and fair verdict—a compelling interest in every criminal case and one that has unique national importance.” It claimed that President Trump hadn’t established a “fair prospect of success” in his appeal and warned about what it saw as the consequences of his position on presidential immunity. Quoting the DC Circuit’s opinion, the special counsel’s brief added that accepting President Trump’s position would “collapse our system of separated powers by placing the President beyond the reach of all three Branches.”

In their Feb. 16 brief, the 22 attorneys general suggested that the special counsel belied its purported interest in urgency by “wait[ing] thirty months to prosecute President Trump.” The public’s interest, they argued, was in avoiding “a prosecution that even appears timed to damage a political opponent.”

They added that it “is evident from the commentary, the media, and even public polling, that the timing of this prosecution has tarnished the Justice Department’s standing in the eyes of the American people. It would further erode that trust for the United States to persist in its rush to trial. A stay, on the other hand, would calm the waters. A stay would give this Court a chance to conduct a normal appellate review and restore some faith in the process.”

Their brief also quoted President Joe Biden’s 2022 statement that “we just have to demonstrate that [Trump] will not take power … if he does run. I’m making sure he, under legitimate efforts of our Constitution, does not become the next President again.”

Special Counsel: Timing ‘Far From Suspicious’

President Trump previously filed a motion to dismiss, accusing the Biden administration of selective and vindictive prosecution. Judge Chutkan hasn’t ruled on that motion yet, but the special counsel filed a response both defending its office and pushing back on concerns about timing.

“The Special Counsel and career prosecutors in the Special Counsel’s Office collectively have served in the Department of Justice for decades,” its November brief read. “They have sworn oaths to support and defend the Constitution, and they have faithfully executed their prosecutorial duties in this case.”

President Trump had noted the indictment’s timing in relation to his not-guilty plea in the Mar-a-Lago classified documents case.

The special counsel argued that “the timing of the indictment in this case was far from suspicious. The prosecution did not materialize out of thin air on August 1, 2023, when the grand jury returned the indictment.”

“Rather, the investigation by career prosecutors was underway well before the defendant was charged or pleaded not guilty in the Southern District of Florida or criticized the Special Counsel’s Office.

“As the defendant knows from discovery, the lengthy and thorough investigation involved career prosecutors and professional law enforcement agents interviewing hundreds of witnesses, obtaining and reviewing millions of pages of documents from subpoenas and search warrants, and ultimately securing an indictment from a grand jury composed of citizens of this District. Indeed, the defendant is well-familiar with the lengthy duration of the investigation, having participated in pre-indictment litigation as early as June 2022.”