The Supreme Court on Wednesday agreed to take up the issue of whether former President Trump can be criminally prosecuted for his efforts to overturn his 2020 reelection loss, setting up a historic case that tests the limits of presidential immunity.
The justices’ order keeps Trump’s Jan. 6 criminal trial proceedings on hold, for now, handing an initial blow to Special Counsel Jack Smith, but keeping alive a pathway for his prosecution to reach a jury before the 2024 presidential election.
Trump had urged the justices to slam the brakes on his trial but hold off on taking up his immunity claims on the merits until the former president first exhausts his appeal options in a lower court.
That process would’ve lasted weeks, if not months, which would’ve aided Trump in further running out the clock, thereby giving him a chance at returning to the White House and ending the prosecution before a jury could hear the case.
At Smith’s suggestion, the Supreme Court instead opted to hear the former president’s immunity claims now, though the justices refused Smith’s primary ask to simply stay out of the case and allow the trial to immediately move forward.
The high court’s order establishes an expedited schedule, setting up oral arguments during the week of April 22 and likely enabling the landmark decision to be handed down by the end of June or sooner.
If the conservative-majority court ultimately sides against Trump, as many legal observers expect, it would then allow Smith’s prosecution to move forward, providing Trump’s judge with a window to still schedule the trial before November’s election.
John Roberts, chief justice of the US Supreme Court, during a State of the Union address at the US Capitol in Washington, DC, US, on Tuesday, Feb. 7, 2023. President Biden is speaking against the backdrop of renewed tensions with China and a brewing showdown with House Republicans over raising the federal debt ceiling. Photographer: Sarah Silbiger/Bloomberg via Getty Images
It would only add to Trump’s first criminal trial that is set to begin on March 25 on hush money charges in New York. The Supreme Court battle over Trump’s immunity is set to take place in the midst of that trial, and the outcome could impact the former president’s remaining three criminal cases.
In Washington, D.C., Trump asserts immunity from four federal felony charges that accuse him of conspiring to subvert the 2020 presidential election results, but he has also made similar arguments to defend against his Georgia election interference and classified documents indictments. Trump pleaded not guilty.
The justices’ decision to hear his immunity claims marks the first time that the Supreme Court, which includes three Trump appointees, will take up any of the former president’s criminal cases since he was charged.
Trump reacted to the news on Truth Social, writing that legal scholars are “extremely thankful” for the Supreme Court’s decision to hear the case.
“Without Presidential Immunity, a President will not be able to properly function, or make decisions, in the best interest of the United States of America,” Trump wrote. “Presidents will always be concerned, and even paralyzed, by the prospect of wrongful prosecution and retaliation after they leave office. This could actually lead to the extortion and blackmail of a President.”
A spokesman for the special counsel’s office declined to comment.
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The case only adds to another historic Trump dispute already on the justices’ docket. The high court is reviewing a Colorado ruling kicking Trump off the state’s ballot under the 14th Amendment’s insurrection ban, and the justices at oral arguments appeared ready to side with Trump. A decision could land as soon as in the coming weeks.
Trump is now headed back to the Supreme Court, with his criminal defense lawyers this time in the limelight as they argue Trump’s federal election subversion indictment should be tossed because he has absolute presidential immunity from the criminal prosecution.
It’s a claim rejected so far by both Trump’s trial judge and a three-judge panel on the D.C. Circuit Court of Appeals.
“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 D.C. Circuit panel wrote in its 57-page decision earlier this month.
“We cannot accept that the office of the Presidency places its former occupants above the law for all time thereafter. Careful evaluation of these concerns leads us to conclude that there is no functional justification for immunizing former Presidents from federal prosecution in general or for immunizing former President Trump from the specific charges in the Indictment,” the decision continued.
Regardless of the outcome, the appeal has handed Trump a victory in delaying his original March 4 trial date in the case.
To keep the schedule on track, the special counsel has sought to resolve Trump’s immunity claims as quickly as possible. Late last year, Smith made a rare request of asking the Supreme Court to leapfrog the D.C. Circuit entirely and immediately take up the case, but the justices declined to step in that early.
This round, after Trump demanded the Supreme Court delay his trial proceedings, Smith responded by telling the justices they should reject the request. Alternatively, Smith told the justices that, if they were inclined to review Trump’s immunity claims on the merits at some point, they should not wait any longer.
“Delay in the resolution of these charges threatens to frustrate the public interest in a speedy and fair verdict — a compelling interest in every criminal case and 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,” Smith’s office wrote in court papers.
Trump, meanwhile, told the justices to hold off on taking up the case now. To eat up more time, the former president sought to first take his appeal to the full D.C. Circuit bench.
The Supreme Court’s order declines to give Trump that opportunity, instead siding with Smith in placing the case on their docket now.
Although Smith has long pushed for a speedy trial, Trump’s lawyers have attacked prosecutors for refraining from explicitly tying the goal to the upcoming presidential election.
“As before, there is no mystery about the Special Counsel’s motivation,” Trump’s lawyers wrote to the justices. “Commentators across the political spectrum point to the obvious — the Special Counsel seeks to bring President Trump to trial and to secure a conviction before the November election in which President Trump is the leading candidate against President Biden.”
Updated at 6:11 pm.