Trump’s ‘presidential immunity’ claim will be tested at the Supreme Court

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The US Supreme Court has agreed to expedite consideration of special counsel Jack Smith’s request for a decision on Donald Trump’s “immunity” claim in his election subversion case that the former president wants dismissed.

An answer would mark the first time the nation’s highest court has weighed in on the criminal prosecutions of the former president, who was charged in a grand jury indictment for his alleged efforts to overturn the results of the 2020 presidential election.

Hours after Mr Smith’s request on Monday, justices agreed to expedite the case. Mr Trump has until 4pm on 20 December to respond.

The former president has argued that he is protected from prosecution for crimes committed while in office, citing “presidential immunity” that the federal judge overseeing the case has rejected. He has appealed that ruling.

Mr Smith’s team with the US Department of Justice asked for the justices to determine “whether a former President is absolutely immune from federal prosecution for crimes committed while in office or is constitutionally protected from federal prosecution when he has been impeached but not convicted before the criminal proceedings begin.”

“The United States recognizes that this is an extraordinary request,” according to the filing. “This is an extraordinary case.”

In a statement through a spokesperson, Mr Trump slammed Mr Smith’s “hail mary” and “authoritarian” request to the Supreme Court.

The stunning question before the court could effectively determine not just the course of Mr Trump’s mountain of criminal cases but answer whether any president in the future is immune from criminal liability.

Mr Smith is asking justices to set a schedule “that would permit this case to be argued and resolved as promptly as possible.”

In a weekend filing in the federal court overseeing the case, Mr Smith’s team urged the court to reject Mr Trump’s attempts to appeal as they attempt to stick with the 4 March, 2024 trial schedule.

Monday’s filing with the Supreme Court notes that Mr Trump’s appeal effectively “suspends” that schedule, potentially derailing a busy year of criminal trials during an election year as the 2024 frontrunner for the Republican nomination for president seeks a return to the White House.

“It is of imperative public importance that [Mr Trump’s] claims of immunity be resolved by this Court and that respondent’s trial proceed as promptly as possible if his claim of immunity is rejected,” prosecutors wrote to the Supreme Court. “Respondent’s claims are profoundly mistaken. ... Only this Court can definitively resolve them.”

On 1 December, US District Judge Tanya Chutkan ruled that Mr Trump’s one term in office did not bestow on him “the divine right of kings” to evade criminal accountability.

“The United States has only one Chief Executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass,’” she wrote. “A former President’s exposure to federal criminal liability is essential to fulfilling our constitutional promise of equal justice under the law.”

Federal prosecutors told the Supreme Court on Monday that such liability is a “cornerstone” of constitutional law.

“The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor,” they wrote.

“Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct,” the filing added. “Yet respondent has asserted that the Constitution accords him absolute immunity from prosecution. The Constitution’s text, structure, and history lend no support to that novel claim.”

Mr Trump was charged with four crimes in the case, including conspiracy to defraud the United States, conspiracy to obstruct an official proceeding, obstruction and attempt to obstruct an official proceeding and conspiracy against rights.

A federal indictment bases those charges around Mr Trump’s lies and knowledge of his “deceit” about the election’s outcome, his campaign’s attempts to pressure state officials and push false slates of electors to obstruct the certification of the results, a failed attempt to persuade then-Vice President Mike Pence to refuse the outcome and Mr Trump’s failure to dissuade a mob of his supporters from breaking into the US Capitol.

The Justice Department’s investigation builds on the years of work from federal prosecutors to investigate more than 1,200 people in connection with the January 6 attack inside the halls of Congress, fuelled by the former president’s ongoing false claims that the election was rigged against him.

This story was published on 11 December has been updated with developments