Supreme Court Asks Special Counsel to Respond to Trump Presidential Immunity Appeal

Chief Justice of the United States John G. Roberts, as he sits with fellow Supreme Court justices for a group portrait at the Supreme Court Building in Washington, on Nov. 30, 2018. J. Scott Applewhite, File/AP Photo

Chief Justice John Roberts has requested that the Justice Department (DOJ) respond to former President Donald Trump’s attempt to assert presidential immunity in his ongoing Jan. 6-related case in D.C.

The U.S. Court of Appeals for the D.C. Circuit had just rejected President Trump’s attempt to overturn Judge Tanya Chutkan’s refusal to dismiss DOJ’s prosecution based on presidential immunity. Justice Roberts’ Feb. 13 request comes less than a week after the justices heard President Trump’s appeal a Colorado ruling that he was disqualified from appearing on the state’s ballot.

With a deadline of Feb. 20, the Court’s request points to a broader urgency for the judicial system to address relatively untested questions of law that could impact the 2024 presidential election.

President Trump criticized the appellate court in his Feb. 12 filing, arguing that it provided a tight timeline for asking the Supreme Court for relief before requiring Judge Chutkan to resume her pre-trial proceedings.

Judge Chutkan indefinitely postponed the scheduled trial date of March 4, which is looking increasingly unlikely amid the former president’s various appeals.

“[A] panel of the D.C. Circuit has, in an extraordinarily fast manner, issued a decision on President Trump’s claim of immunity and ordered the mandate returned to the district court to proceed with President Trump’s criminal trial in four business days, unless this Court intervenes (as it should),” President Trump’s application to stay the appellate court’s mandate read.

As President Trump’s brief noted, Special Counsel Jack Smith had requested the Supreme Court skip appellate proceedings and fast-track the issue, stating that “only” the Supreme Court could “definitively resolve” President Trump’s claims to immunity. The Supreme Court ultimately rejected Mr. Smith’s petition but is expected to eventually rule on the issue.

Presidential Immunity’s ‘Outer Perimeter’

President Trump is asking for the Supreme Court to halt the appellate decision because it incorrectly ruled that presidential immunity didn’t apply to Mr. Smith’s prosecution of him.

His attorney, D. John Sauer, had argued in January that the Constitution required presidents first face impeachment and trial by Congress before they could be criminally prosecuted within Article III courts. A three-judge panel on the D.C. Circuit unanimously rejected his arguments, stating that” ‘[c]oncerns of public policy, especially as illuminated by our history and the structure of our government’ compel the rejection of his claim of immunity in this case.”

The judges also ruled that “any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”

Presidential immunity is a relatively ambiguous area of law, but the Supreme Court held in Nixon v. Fitzgerald (1982) that the president had “absolute immunity” from civil liability that extended to the “outer perimeter” of his official duties.

But President Trump went too far, the appellate judges held, by asking for immunity from criminal liability. “Former President Trump’s claimed immunity would have us extend the framework for Presidential civil immunity to criminal cases and decide for the first time that a former President is categorically immune from federal criminal prosecution for any act conceivably within the outer perimeter of his executive responsibility,” the judges’ opinion read.

Meanwhile, President Trump maintained that Mr. Smith’s indictment targeted his official acts as president and that the Constitution afforded presidents’ discretionary decisions special protection from review by courts. Part of his argument rested on the Supreme Court’s decision in Mississippi v. Johnson, which held that “this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

In requesting the Supreme Court’s intervention, President Trump’s brief noted that his “claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal.”