Trump Hands Supreme Court a Historic Question

‘In 234 years of American history, no President ever faced criminal prosecution for his official acts. Until 19 days ago ...’
Trump Hands Supreme Court a Historic Question
Former President Donald Trump receives the first-ever Founding Fathers Award from Moms of America at the Mothers of Influence & Champion of Freedom Awards in Palm Beach, Fla., on Dec. 8, 2023.(Courtesy Moms for America)
Catherine Yang

Attorneys for former President Donald Trump told the U.S. Supreme Court on Wednesday that special counsel Jack Smith has misrepresented the case against the former president in the high court.

They argued that prosecutors have requested the case be tried “at breakneck speed,” and urged caution, opposing the request. “The petition for writ of certiorari before judgment should be denied,” the new brief reads.

Mr. Smith asked the court to consider “whether absolute presidential immunity extends to ‘crimes committed while in office,’” the brief reads, but President Trump has “asserted that a President is immune from prosecution for official acts.”

Mr. Smith is prosecuting a criminal case against President Trump in federal court, alleging the former president tried to overturn the 2020 election results.

On Dec. 11, prosecutors asked the Supreme Court to weigh in on the case, which is pending in the appeals court.

The issue at hand was whether the Supreme Court should review the case on an expedited basis.

President Trump presented the Supreme Court with two other questions: Whether the absolute immunity conferred to a president “includes immunity from criminal prosecution for a President’s official acts,” and whether the impeachment proceedings and subsequent acquittals would make the prosecution foreclosed based on the principles of double jeopardy.

What Is Presidential Immunity?

A 1982 Supreme Court opinion for a case against President Richard Nixon resulted in the “absolute immunity” referred to in many of the defenses President Trump is now raising in court.

The case in question was a civil case, not a criminal case, brought by a former Air Force analyst who alleged he lost his position because of testimony he gave before Congress.

In Nixon v. Fitzgerald, the Supreme Court found the president absolutely immune from suit, and extended that immunity to the “outer perimeters” of their office.

This ruling was meant to protect presidents from being sued personally for their decisions in office, with the rationale that it would diminish the Office of the President of the United States if one could serve in office, and leave only to find a barrage of legal action against oneself.

“[T]he President [is] the chief constitutional officer of the Executive Branch, entrusted with supervisory and policy responsibilities of utmost discretion and sensitivity,” the opinion reads.

This grants presidents immunity from civil suits.

Immunity from criminal prosecution is a new issue.


The Wednesday court filing emphasized the unprecedented nature of the case, and the question before the court.

“In 234 years of American history, no President ever faced criminal prosecution for his official acts. Until 19 days ago, no court had ever addressed whether immunity from such prosecution exists,” the brief reads.

Trump attorneys are arguing the question is a “momentous” one that would naturally take the court time to consider, and are opposing an expedited review. Furthermore, the case is already being considered in the appeals court, and it is not typical for the Supreme Court to intervene at this stage.

The Nixon v. Fitzgerald opinion was issued after about a year, whereas in the current case, “the sum total of judicial grappling with this issue is one 19-day-old district court opinion.”

“The Special Counsel ... confuses the ‘public interest’ with the manifest partisan interest in ensuring that President Trump will be subjected to a months-long criminal trial at the height of a presidential campaign where he is the leading candidate and the only serious opponent of the current Administration,” they argued.

Double Jeopardy

U.S. District Court Judge Tanya Chutkan had ruled that an impeachment proceeding and subsequent Senate acquittal did not bar similar charges from being brought against President Trump again in criminal court.

To do so would be to put President Trump above the law, she ruled. Defense attorneys had argued that this was not so, because the Impeachment Judgment Clause was designed to hold presidents accountable.

Trump attorneys tell the Supreme Court that “neither a federal nor a state prosecutor may sit in judgment over a President’s official acts, which are vested in the Presidency alone.”

Unless a president has been impeached and then convicted by the Senate, he is immune from prosecution, they argued, because the clause does not “extend further than to removal from Office,” but adds that the convicted party “shall nevertheless be liable and subject to Indictment, Trial, Judgment, and Punishment.”

The plain implication is that President Trump has already been tried for charges in this case, and was not convicted, they argue.

Other Presidents

To allow criminal prosecution of former presidents for official acts would have reverberating effects, they further argued.

“American history abounds with examples of Presidents who were accused by political opponents of committing crimes through their official acts,” the brief reads, naming Presidents John Quincy Adams, George W. Bush, and Barack Obama as examples.

After President Adams’s appointment of Henry Clay as Secretary of State, President Bush’s proclamation that Saddam Hussein possessed stockpiles of weapons of mass destruction, and President Obama’s authorization of a drone strike that resulted in the death of two American citizens, their “political opponents vehemently accused that President of criminal behavior in his official acts.”

The “unbroken tradition” of not prosecuting official acts implies this “power does not exist,” they argue.

Case Takes a Turn

President Trump has filed motions to dismiss the case on several grounds, including a presidential immunity defense.

That motion was rejected in the district court, leading to an appeal in higher court, thus stalling district court proceedings.

On Dec. 11, the special counsel petitioned the Supreme Court for an immediate review regarding President Trump’s presidential immunity defense.

Prosecutors asked the high court “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 move preempted President Trump’s eventual appeal of the case to the high court, as he had suggested he would do in public statements.

The petition also came hours after the prosecutors had made a move in the appeals court, requesting an expedited resolution to President Trump’s appeal.

Prosecutors have argued it is in the public interest to try this case quickly, while defense attorneys have argued the case is on a rushed schedule meant to interfere with President Trump’s campaign for reelection.

In the appeals court, the first hearing has been scheduled for Jan. 9, 2024.

19 AGs, Other Experts Raise More Questions

Alabama Attorney General Steve Marshall submitted an amici brief on Dec. 20, joined by 18 other state attorneys general.

The attorneys argued the special counsel failed to demonstrate the necessity of a March 4 trial, and asked the high court to determine whether the prosecutors have “made an extraordinary showing that this case justifies ‘deviation from normal appellate practice’ and requires ‘immediate determination’ by this Court.”

The prosecutors’ petition “never explains why” it’s so important to try the case quickly, the attorneys general argue.

“That silence is both telling and troubling, suggesting that the United States’ demand for extraordinary and immediate relief is driven by partisan interests, not the public interest,” the brief reads.

Former Attorney General Edwin Meese III and law professors Steven G. Calabresi and Gary S. Lawson also submitted an amicus brief together supporting neither party, asking the Supreme Court whether Mr. Smith has the proper jurisdiction to make such a request in the first place.