Donald Trump's attorneys on Wednesday urged the U.S. Supreme Court to deny Special Counsel Jack Smith's petition asking the high court to review the former president's appeal of his federal election-subversion charges on presidential "immunity" grounds.
The Supreme Court should not take up the case until after a mid-level federal appellate court rules on the matter, Trump's legal team said in the 44-page filing. The paramount importance of the case, they argued "calls for it to be resolved in a cautious, deliberative manner — not at breakneck speed."
"This appeal presents momentous, historic questions. An erroneous denial of a claim of presidential immunity from criminal prosecution unquestionably warrants this Court’s review," Trump's lawyers wrote. "...That does not entail, however, that the Court should take the case before the lower courts complete their review."
Trump's appeal centers on U.S. District Judge Tanya Chutkan's 48-page order on Dec. 1 denying Trump's motion to dismiss the charges on the grounds that he couldn't be charged for actions he took within the "outer perimeter" of his official duties as president. The Constitution’s text, structure, and history, Chutkan wrote in her order, "do not support that contention."
In the same Dec. 1 order, Chutkan denied the former president's argument that the prosecution violates the Fifth Amendment's "double jeopardy" clause because Trump was acquitted in his second impeachment trial.
Trump's legal team responded to Chutkan's denial by filing both an appeal with the D.C. Circuit Court of Appeals seeking reconsideration of the motion to dismiss charges and a motion to "stay," or pause, the proceedings in the case "pending the final resolution of his recently filed appeal."
A three-judge panel of the D.C. Circuit Court of Appeals on Monday scheduled oral arguments for Jan. 9, 2024 on the appeal.
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Special Counsel Jack Smith's office, which has sought to prevent delays in the case's progress toward trial, on Dec. 11 petitioned the Supreme Court to take the unusual step of hearing the "immunity" appeal before the D.C. Circuit Court of Appeals issues a judgment.
While the Supreme Court almost never accepted such pre-judgment petitions in the past – granting only four between 1988 and 2004 – the high court has been more open recently, granting 14 such petitions between 2019 and 2022. Nevertheless, as Smith’s office acknowledged in its legal filing, it is a rare move.
"The United States recognizes that this is an extraordinary request,” Smith’s office wrote in its petition. “This is an extraordinary case."
The Supreme Court has agreed to expedite its consideration of whether to take up the case. It is among a growing number of legal matters concerning Trump that the high court is expected to handle in the coming months.
In their brief Wednesday responding to Smith's petition, Trump's legal team argued it would be premature for the Supreme Court to take up the case.
"This Court’s ordinary review procedures will allow the D.C. Circuit to address this appeal in the first instance, thus granting this Court the benefit of an appellate court’s prior consideration of these historic topics and performing the traditional winnowing function that this Court has long preferred," Trump's legal team said in their brief.
Taking the case without allowing the D.C. Circuit to rule on it first would amount to a "rush to decide the issues with reckless abandon," Trump's lawyers wrote.
The former president's legal team argued Smith "identifies no compellingreason for the extraordinary haste he proposes."
"Instead, he vaguely asserts that the 'public interest' favors resolution on a dramatically accelerated timetable, to ensure that President Trump may be brought to trial in the next few months," Trump's lawyers argued in the brief. "In doing so, he 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."
Trump's legal brief was accompanied in the Supreme Court docket by two amicus briefs supporting his arguments that the D.C. Circuit should first be allowed to rule.
In one amicus brief, attorneys general for 19 Republican-leaning states argued that prosecutors' "demand for extraordinary and immediate relief is driven by partisan interests, not the public interest."
In another brief, former Reagan-era Attorney General Edwin Meese III and two law professors took on a broader challenge to Smith's role as special counsel, arguing that he lacks authority to conduct the underlying prosecution of Trump.
Trump is charged with four federal felonies in the case alleging he obstructed the 2020 presidential election and has pleaded not guilty to all charges. His trial in Washington, D.C. is scheduled to begin the day before Super Tuesday on March 4, though the appellate reviews on Trump's immunity argument could lead to delays.