“The United States recognizes that this is an extraordinary request,” Smith wrote. “This is an extraordinary case.”
He added that, given the regular pace of the Supreme Court’s work, the justices might not hear the Trump immunity case until this summer or later if his request is not granted.
The timing of Trump’s four criminal cases is of paramount concern to both prosecutors and Trump’s legal team. Smith has also charged Trump in Florida with allegedly mishandling classified documents and obstructing government efforts to retrieve them; in addition, the former president faces state charges in New York for alleged hush money paid during the 2016 election, and in Georgia alleging a massive conspiracy to undo the 2020 election results in that state.
In the face of the four different indictments, Trump has denied guilt and tried to push his trials beyond election day in November. Smith’s latest legal gambit aims to keep the Washington trial on its current schedule. That schedule calls for Trump’s D.C. trial to begin one day before the Super Tuesday primary — underscoring how potentially messy next year’s political and legal calendars could be.
“It is of imperative public importance that respondent’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,” the filing from Smith’s team argues.
Trump’s legal team had earlier asked that the charges against him be dismissed, arguing that presidential immunity protects him from prosecution in this case involving his conduct during his waning days in office. U.S. District Judge Tanya S. Chutkan ruled against him, and Trump plans to appeal that ruling.
That appeal, however, could take months and significantly delay the start of the trial. So Smith — the federal prosecutor appointed by Attorney General Merrick Garland to lead the investigation of Trump — is seeking to speed up the process.
Smith argued in the filing that Trump’s legal claims of immunity “are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.”
He noted that in recent years the court has granted requests to consider cases of “imperative public importance” before an appeals court had completed its review. Among them were challenges to President Biden’s attempt to forgive student loan debts; review of a Mississippi abortion law that led to overturning Roe v. Wade and the proposed addition of a citizenship question to the census.
In arguing that the justices should take up the issue of Trump’s immunity right away, Smith cited the Supreme Court’s landmark United States v. Nixon decision, which ordered President Richard Nixon to deliver White House tapes and other documents to a federal district court. The unanimous ruling said a president does not have absolute immunity from subpoenas or other court actions.
The Supreme Court expedited consideration of the Nixon case, and delivered its opinion three weeks after oral argument.
Derek Muller, a University of Notre Dame law school professor, described Monday’s filing as rare and said Smith was asking the Supreme Court for “extraordinary relief.”
He said the Supreme Court is often reluctant to get involved when it doesn’t need to, but that there is no harm in Smith making the request as he explores every legal avenue to ensure the case proceeds on schedule.
“March 4 sounds like it is a long ways away — but it’s not. Especially when you have multiple layers of judicial review and pending appeals,” Muller said. “Smith’s team is trying to wrap up things as quickly as possible to eliminate uncertainty.
Trump picked a third of the sitting justices during his four years in office. But the former president does not have a winning track record at the high court. The justices turned aside requests from Trump and his supporters to get involved in challenges to the 2020 election results. It ruled against his claims that the presidency protected him from investigation and rejected his efforts to block release of his financial records.
Last year, the court refused Trump’s request to block the release of some of his White House records to the House committee investigating the Jan. 6, 2021 attack on the U.S. Capitol by a pro-Trump mob that was trying to heed his calls to overturn Joe Biden’s election victory.
In his Supreme Court filing, Smith acknowledged that Trump’s appeal of Chutkan’s ruling “suspends the trial of the charges against him, scheduled to begin on March 4, 2024.”
That’s why, he said, the justices’ intervention is necessary to keep things on track.
“This case presents a fundamental question at the heart of our democracy: 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.”
It is rare, but not unheard of, that the Supreme Court intervenes in a case before an appeals court decides the issue. Generally, the justices feel they benefit from the briefing before lower court judges and their consideration of an issue.
Also on Monday, the special counsel filed a motion asking for expedited review of the immunity decision in the federal appeals court in Washington. D.C. — a court that is a step below the Supreme Court — in case the Supreme Court chooses not to take up the case immediately.
A swifter appeal process in the appeals court, the prosecutors wrote, would still get the case to the Supreme Court by next summer.
Smith’s proposed briefing schedule in D.C. would give Trump 10 days to appeal Chutkan’s ruling that Trump is not immune from prosecution. Smith would then allow the government a week to respond, and Trump three days to reply to that response.
Even if the court agrees to that schedule, the appeals court judges can take as long as they want to render a decision. When Trump claimed immunity from any civil lawsuit over his actions on and around Jan. 6, 2021, for example, oral argument was held in December 2022. But the decision — with the appeals court ruling against him — just came out this month.
Ann E. Marimow contributed to this report.
This is a developing story. It will be updated.