Trump and his lawyers have been claiming that surviving impeachment gives Trump immunity from further prosecution, so Jack Smith has asked the Supreme Court to hear the claim and make a decision.
The Special Counsel wrote in his petition to the court:
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.
The district court rejected respondent’s claims, correctly recognizing that former Presidents are not above the law and are accountable for their violations of federal criminal law while in office. App., in-fra, 7a-38a, 46a-53a. Respondent’s appeal of the ruling rejecting his immunity and related claims, however, suspends the trial of the charges against him, scheduled to begin on March 4, 2024.
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. Respondent’s claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them.
The Court should grant a writ of certiorari before judgment to ensure that it can provide the expeditious resolution that this case warrants, just as it did in United States v. Nixon, 418 U.S. 683, 686-687 (1974).
Smith noted the extraordinary nature of the petition, “The United States recognizes that this is an extraordinary request. This is an extraordinary case. The Court should grant certiorari and set a briefing schedule that would permit this case to be argued and resolved as promptly as possible.”
The Conservative SCOTUS Majority Has Been Hostile To Expansions Of Executive Power
The Special Counsel has a good chance of prevailing before the Supreme Court because one of the consistencies of this court is that it does not look kindly upon expansions of executive power that are not in the Constitution. Donald Trump is claiming a form of executive immunity that is not in the Constitution.
The odds are not high that the Supreme Court is going to redefine presidential immunity. Trump has claimed that because he was not convicted at his impeachment trial, he has immunity, and further prosecution is double jeopardy, but impeachment trials are not criminal proceedings.
Previous court precedent has determined that presidential immunity is not unlimited. A president can’t be immune from prosecution for crimes committed while in office.
The immunity claim is Trump’s big stall tactic, and Jack Smith is smashing it by going directly to the Supreme Court so that Trump can’t run out the clock until Election Day in 2024.
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