Trump Asks Supreme Court to Put Off Hearing Case on Immunity Claim

Former President Donald J. Trump urged the Supreme Court on Wednesday to put off a decision on a crucial question in his federal prosecution on charges of plotting to overturn the 2020 election: whether he has “absolute immunity” for actions he took as president.

The question, Mr. Trump’s brief said, should be “resolved in a cautious, deliberative manner — not at breakneck speed.” He urged the justices not to “rush to decide the issues with reckless abandon.”

The request appeared to be part of Mr. Trump’s general strategy of trying to delay the trial in the case, which is scheduled to start in March.

Last week, Jack Smith, the special counsel, asked the Supreme Court to bypass a federal appeals court and agree to hear the immunity question on a quick schedule. Mr. Trump opposed that request on Wednesday, saying the importance of the matter warranted careful and unhurried deliberation by the appeals court before the justices decide whether to take it up.

Mr. Trump’s brief said Mr. Smith’s desire for expedited treatment was driven by political considerations.

“He confuses the ‘public interest’ with the manifest partisan interest in ensuring that President Trump will be subjected to a monthslong criminal trial at the height of a presidential campaign where he is the leading candidate and the only serious opponent of the current administration,” the brief said. “The combination of an almost three-year wait to bring this case and the special counsel’s current demand for extraordinary expedition, supported by the vaguest of justifications, creates a compelling inference of partisan motivation.”

The Supreme Court is likely to decide whether to hear the case in short order. If it does, it could hear arguments in January and issue a decision in the following weeks. If it turns away the case for now, the appeals court will consider the question, after which the losing side is almost certain to return to the Supreme Court.

Working on a parallel track, Mr. Smith has also asked the U.S. Court of Appeals for the District of Columbia Circuit to consider the issue at the same time. Last week, a three-judge panel of the court agreed with Mr. Smith’s request for an expedited schedule in the case and laid out an aggressive timeline for all written filings to be submitted by Jan. 2. The court set oral arguments for Jan. 9.

Judge Tanya S. Chutkan of the Federal District Court in Washington has put the case on hold while the appeals court considers the immunity question — although prosecutors have tried to nudge it forward, angering Mr. Trump’s lawyers.

The two sides agree that the immunity issue is of surpassing importance, but they differ on timing. Mr. Smith has asked the justices to move quickly, relying on a relatively rare procedure, called “certiorari before judgment,” in an attempt to leapfrog the appeals court. Mr. Trump urged the justices to allow appeals in the case to proceed in the usual way.

The resolution of the immunity issue will be crucial in deciding whether the election interference case goes to trial before the 2024 election. It could also affect the timing of some of Mr. Trump’s other criminal cases, which depend in large part on when the case in Washington goes in front of a jury.

Mr. Trump would like to delay the two federal trials he is facing until after the race is over because if he wins, he would have the power to order the charges against him dropped.

The Supreme Court will soon confront a different question arising from the aftermath of the 2020 election. On Tuesday, the Colorado Supreme Court ruled that Mr. Trump is not eligible to be on the primary ballot in that state under a provision of the Constitution that bars officials who have engaged in insurrection from holding federal office. Mr. Trump has said he will appeal that ruling to the Supreme Court.

In his request to put matters on a fast track in the immunity case, Mr. Smith invoked a 1974 precedent, United States v. Nixon, in which the Supreme Court unanimously — and quickly — ruled that President Richard M. Nixon, then still in office, had to comply with a trial subpoena seeking tapes of his conversations in the Oval Office, rejecting his claims of executive privilege.

“Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified presidential privilege of immunity from judicial process under all circumstances,” Chief Justice Warren E. Burger wrote.

Mr. Smith noted that the Supreme Court moved with considerable speed in the case, using the “certiorari before judgment” procedure. The court granted review a week after the petition was filed, scheduled prompt arguments and issued its decision 16 days later.

Mr. Trump’s lawyers, by contrast, largely relied on Nixon v. Fitzgerald, a 1982 decision that also involved Nixon. It was a civil case brought by an Air Force analyst who said he was fired in 1970 in retaliation for his criticism of cost overruns. By the time the Supreme Court acted, Nixon had been out of office for several years.

By a 5-to-4 vote, the justices ruled for Nixon. “In view of the special nature of the president’s constitutional office and functions,” Justice Lewis F. Powell Jr. wrote for the majority, “we think it appropriate to recognize absolute presidential immunity from damages liability for acts within the ‘outer perimeter’ of his official responsibility.”

In December, Judge Chutkan rejected Mr. Trump’s arguments. “Whatever immunities a sitting president may enjoy,” she wrote, “the United States has only one chief executive at a time, and that position does not confer a lifelong ‘get-out-of-jail-free’ pass.”

She added that the 1982 decision did not address asserted criminal conduct.

“The rationale for immunizing a president’s controversial decisions from civil liability does not extend to sheltering his criminality,” Judge Chutkan wrote.

Language in the 1982 decision supported the distinction between civil and criminal cases, she wrote.

Justice Powell’s majority opinion noted that “the court has recognized before that there is a lesser public interest in actions for civil damages than, for example, in criminal prosecutions.”

Chief Justice Burger underscored the point in a concurring opinion. “The immunity is limited to civil damages claims,” he wrote.

In 2020, the Supreme Court ruled by a 7-to-2 vote in Trump v. Vance that Mr. Trump had no absolute right to block the release of his financial records in a criminal investigation.

“No citizen, not even the president, is categorically above the common duty to produce evidence when called upon in a criminal proceeding,” Chief Justice John G. Roberts Jr. wrote for the majority.

Alan Feuer contributed reporting.