WASHINGTON ― Donald Trump on Monday took his claim of “total immunity” from criminal prosecution for his coup attempt to the U.S. Supreme Court, thereby keeping his case from moving toward trial until the high court issues a ruling.
“This application is “déjà vu all over again,” the former president’s lawyers wrote at the start of their request to the high court to block a resumption of criminal proceedings against him.
Trump’s lawyers complained that the Court of Appeal for the District of Columbia Circuit had ruled on Trump’s request to overturn trial judge Tanya Chutkan’s ruling that he was not immune from prosecution for his actions leading up to and on Jan. 6, 2021.
One subheading, in fact, was titled: “Absent a Stay, President Trump Will Immediately Be Required to Bear the Burdens of Prosecution and Trial.”
A three-judge panel of the appellate court on Feb. 6 unanimously upheld the trial court’s decision that Trump was not immune from prosecution for his actions that incited the assault on the Capitol to block the transfer of presidential power after he lost the 2020 election. Appellate judges told the former president he had until Feb. 12 to file a request for a stay with the Supreme Court, which would further freeze his case until justices make a decision to take it on or not.
Trump argued to both U.S. District Judge Tanya Chutkan and a three-judge panel of the appellate court that any and all of the actions a president takes in office are immune from prosecution and that the only way a former president can be prosecuted is if they were first impeached in the House and convicted in the Senate.
Both Chutkan and the appellate judges disagreed.
“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 appeals judges wrote.
Trump largely repeated the same claims that have been previously rejected as baseless by both Chutkan and the appellate court judges ― essentially that Trump’s schemes to remain in power were “official acts” that could not be prosecuted. They wrote that forcing him to go to trial would mean future presidents will be prosecuted as well.
“This threat will hang like a millstone around every future president’s neck, distorting presidential decision making, undermining the president’s independence, and clouding the president’s ability “to deal fearlessly and impartially with the duties of his office,” Trump’s lawyers wrote. “Without immunity from criminal prosecution, the presidency as we know it will cease to exist.”
The lawyers asked the high court to put the case’s return to Chutkan’s court to resume proceedings on hold while justices decide whether to take the case, and to allow Trump to appeal last week’s decision by the three-judge panel not to give freeze the case if Trump chooses to appeal that decision to the full slate of judges on that court.
The judges on the appeals court said a delay in the proceedings would expire with a Supreme Court decision not to extend it and gave Trump until Monday to file that request with the high court.
Trump’s lawyers do not point out that, should Trump win the November election and retake the White House, he would be able to order the Department of Justice to end all the federal criminal cases against him ― a major incentive for Trump to delay the cases as much as possible.
Trump’s lawyers in this case are the same as the ones who argued and lost the appeal in the appellate court: John Sauer, John Lauro and Todd Blanche. Although the filing was 110 pages in all, the actual request to the Supreme Court was only 26 pages, with a copy of the appellate ruling and a source list accounting for the rest.
Trump has indicated he would also ask the Supreme Court to review the substance of the appellate court ruling. If a majority of the justices agreed to overturn the appeals court, it would likely end the felony, four-count election subversion case against him.
Trump has previously said he hopes the Supreme Court’s conservative majority, particularly the three justices he appointed, will rule in his favor in his criminal cases.
In December, the Supreme Court declined to review the immunity question at the request of special counsel Jack Smith, who had asked justices to step in and decide the matter immediately.
Chutkan had slated Trump’s trial on charges of conspiracy and obstruction of an official proceeding to start in early March, but earlier this month said the case could not move forward until Trump’s appeal was settled.
Trump, though, will continue to face three other criminal prosecutions. A separate Georgia state indictment charges him with trying to overturn the election in that state. A second federal indictment is based on his refusal to turn over secret documents he took with him to his South Florida country club after leaving the White House, while a New York state indictment accuses him of falsifying business records to hide a $130,000 hush money payment to a porn actor just ahead of the 2016 election.
Despite the 91 felony charges across the four indictments, Trump is the all-but-certain Republican presidential nominee for the November election.