It was the second time in less than a week that the leading Republican presidential candidate turned to the nation’s highest court to intervene in an unprecedented legal question that could shape his political future.
At oral argument Thursday, the justices seemed inclined to reverse a ruling from Colorado’s top court that Trump should be barred from the ballot because of his conduct around the Jan. 6, 2021 attack on the U.S. Capitol.
Monday’s filing asks the justices to put on hold — pending a formal appeal to the Supreme Court — the sweeping rejection by the U.S. Court of Appeals for the D.C. Circuit of Trump’s claim that he is shielded from prosecution for actions he took while in office.
The request gives the justices a potentially key role in determining whether and when Trump, who is running for another term in the White House and closing in on the Republican nomination, will face a federal criminal trial in Washington.
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Chief Justice John G. Roberts Jr., in his role overseeing cases that originate in the D.C. Circuit, is likely to ask for a quick response from federal prosecutors before the justices rule on Trump’s request.
The 57-page D.C. Circuit opinion delivered last week was a forceful and unanimous rebuke from an appeals court panel with two judges nominated by Biden, a Democrat, and one nominated by Republican George H. W. Bush.
“We cannot accept former President Trump’s claim that a president has unbounded authority to commit crimes that would neutralize the most fundamental check on executive power — the recognition and implementation of election results,” the judges said in their opinion.
They also said trial preparations could resume in the case unless Trump asked the justices to pause the proceedings by Feb. 12, giving the former president little choice but to go directly to the Supreme Court instead of seeking a review from the full appeals court.
U.S. District Judge Tanya S. Chutkan, who is presiding over the case, had paused pre-trial proceedings while the appeal was pending and postponed a scheduled March 4 trial date until the appeal is resolved. Trump has pleaded not guilty to charges of conspiring to fraudulently subvert the results of the 2020 election, conspiring and attempting to obstruct Congress’s confirmation of the vote on Jan. 6, 2021, and conspiring against Americans’ civil right to have their votes counted.
As they decide whether to grant Trump’s request to keep the proceedings on hold, the justices are also likely to consider whether to schedule the immunity issue for argument before the Supreme Court’s term ends in late June or early July.
The justices could also deny Trump’s request and allow the D.C. Circuit’s ruling that Trump can be prosecuted to stand, clearing the way for trial proceedings to resume immediately.
The votes of five of nine justices are required to keep the D.C. Circuit ruling on hold and the trial proceedings paused. It takes four justices to accept a case for review.
In his filing Monday, Trump raised concerns about a possible trial interfering with the election season. He said the Supreme Court should not expedite review of his case and instead allow him to first seek rehearing by a full complement of D.C. Circuit judges.
“Conducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden—which appears to be the whole point of the Special Counsel’s persistent demands for expedition,” said the filing from his legal team, led by attorney D. John Sauer.
A spokesman for the special counsel declined to comment.
Some legal experts say there is good reason to think at least four justices will vote to take the case; Trump is the first former president to be charged with a crime, and the justices may want to have the final word on such a significant issue as whether he is immune from prosecution.
If the high court takes the case and does not expedite review, that would further delay Trump’s D.C. federal trial, one of four criminal cases the former president is fighting while simultaneously campaigning for reelection.
“Everyone knows that’s been Trump’s goal,” Fred Wertheimer, president of Democracy 21, said during a panel discussion last week that focused on the former president’s legal troubles. “If he can drag this on until after the election, and if he wins, he will quickly kill this case.”
Even though the immunity case and questions about Trump’s ballot eligibility are distinct, legal observers have suggested the justices may seek a compromise when it comes to resolving the matters involving the former president.
After oral argument in the Colorado case, in which the justices seemed poised to keep Trump on the ballot, Richard Hasen, a UCLA law professor, said a “grand bargain” appears to be emerging.
Hasen characterized Trump’s immunity claims are “exceptionally weak,” and suggested the court could both restore Trump to the ballot and force him to face trial.
“Together, these decisions let the voters decide if Trump really is disqualified from serving as president,” Hasen wrote for Slate, adding that it would be a “nice Kumbaya moment” for the court.
The D.C. Circuit upheld Chutkan’s Dec. 1 ruling rejecting Trump’s novel claim that former presidents are immune from prosecution, at least for actions related to their official duties, unless first impeached and convicted by Congress.
“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the panel wrote. “But any executive immunity that may have protected him while he served as president no longer protects him against this prosecution.”
The judges pointed out that other former presidents believed themselves vulnerable to prosecution. Gerald Ford pardoned Richard Nixon “for all offenses” he “committed or may have committed” in office.
During Trump’s second impeachment proceedings in the House after the Jan. 6 attack, his lawyers acknowledged that he could be criminally charged even if acquitted by the Senate.
Perry Stein contributed to this report.