Jack Smith Urges Supreme Court to Reject Trump’s Request to Stay Case

Special Counsel Jack Smith, who is prosecuting former President Donald Trump for alleged actions on Jan. 6, 2021, urged the Supreme Court to deny the former president’s request to stay the case proceedings. He argued that Trump has a low chance of winning a review by the high court based on the merits.

Prosecutors argue that President Trump’s “charged crimes strike at the heart of our democracy” and that he tried to “thwart the peaceful transfer of power.”

These charges are “the last place to recognize a novel form of absolute immunity,” they argued.

Prosecutors also argued, as they did late last year when they requested the Supreme Court to intervene after President Trump brought the case to the appeals court, that it is in the public interest for the trial to proceed quickly without delay.

“Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict … one that has unique national importance here, as it involves federal criminal charges against a former president for alleged criminal efforts to overturn the results of the presidential election, including through the use of official power.”

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That the high court has already once declined to review President Trump’s use of presidential immunity “reflected an inclination not to review” that defense, prosecutors argued.

March Hearing Requested

In December, prosecutors essentially asked the high court to intervene in the appeals court process, which was already on an expedited track. Now, President Trump has informed the high court that he will seek a review while requesting it to stay the lower court proceedings due to an atypical order from the appeals court.

The district court rejected President Trump’s claim of presidential immunity in early December, which led to a complete halt of proceedings while he pursued an appeal.

Two months later, the appeals court rejected the defense as well and added in an order that unless President Trump appealed to the Supreme Court by Feb. 12, it would issue its decision, or mandate, and send the case back to the trial court to restart the deadlines. They specified that even if President Trump sought rehearing from the panel or full bench in the appeals court, it would not stop the district court proceedings, as it typically would.

The prosecutors are now asking the Supreme Court to treat the application for a stay as a petition for review, and if the high court is inclined to grant it, to “set the case for expedited briefing and argument.”

“The government proposes a schedule that would permit argument in March 2024, consistent with the Court’s expedition of other cases meriting such treatment,” the brief reads.

Presidential Immunity

President Trump is arguing that his actions on Jan. 6, 2021, were part of his official duties as president, that he has a history of taking election integrity seriously, and in 2020 was a vocal proponent of investigating claims of election fraud. He claims these acts are covered by presidential immunity.

Prosecutors, meanwhile, argue that he has no such immunity. A district court and appeals court have already ruled in the prosecutors’ favor.

In 1982, the Supreme Court defined a president’s immunity from civil suit to be broad and “absolute,” extending to the “outer perimeter” of his office. It arose from a case where a military contractor sued President Richard Nixon after the contractor lost his job.

The Supreme Court has never stated that presidents have immunity from criminal prosecutions, however, making President Trump’s line of defense a novel legal theory.

His attorneys argue that this issue has never arisen in the history of the presidency because it was understood that setting a precedent to allow prosecuting presidents would certainly “diminish” the office of the president, similar to the way a civil suit would.