Special Counsel Asks Supreme Court to Decide Whether Trump Is Immune From Prosecution

Jack Smith, the special counsel prosecuting former President Donald J. Trump on charges of plotting to overturn the 2020 election, asked the Supreme Court on Monday to rule on Mr. Trump’s argument that he is immune from prosecution.

The request was unusual in two ways: Mr. Smith asked the justices to rule before an appeals court acted, and he urged them to move with exceptional speed.

“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,” Mr. Smith wrote.

He added that speed was of the essence, as Mr. Trump’s appeal of a trial judge’s ruling rejecting his claim of immunity suspends the trial of the charges against him. The trial is scheduled to begin on March 4 in Federal District Court in Washington.

The judge, Tanya S. Chutkan, rejected Mr. Trump’s sweeping claims that he enjoyed “absolute immunity” from the election interference indictment because it was based on actions he took while he was in office.

In her ruling, she condemned his attempts to “usurp the reins of government” and said there was nothing in the law, the Constitution or American history supporting the proposition that a former president should not be bound by the federal criminal law.

Mr. Trump appealed the decision to the U.S. Court of Appeals for the District of Columbia Circuit. He also asked Judge Chutkan to freeze the election interference case in its entirety until the appeal was resolved.

In his Supreme Court brief, Mr. Smith conceded that the trial would most likely have to be paused because of the appeal of the immunity issue. That position reversed the one his prosecutors took over the weekend in court papers, in which they argued that Judge Chutkan should not have to stay the case pending appeal.

Winning the appeal of the immunity decision was only one of Mr. Trump’s goals in challenging the decision. All along, he and his lawyers have had an alterative strategy: to delay the election interference trial for as long as possible.

If the trial were to be put off until after the 2024 election and Mr. Trump were to win, he could have his attorney general simply dismiss the charges. Holding a trial after the presidential race would also mean that voters would never hear any of the evidence that prosecutors have collected about Mr. Trump’s expansive efforts to reverse the results of the last election before weighing in on whether to re-elect him.

Even if Mr. Trump’s legal team is unable to postpone the trial until after the presidential race was decided, they are hoping to push it off until the heart of the campaign season in August or September. That would present Judge Chutkan with a difficult decision: Should she conduct the trial at a time when Mr. Trump should be holding rallies and meeting voters and suffer what is sure to be his vociferous complaints or make the decision herself to delay the trial until after the race is over?

Mr. Smith urged the justices to move quickly.

“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,” Mr. Smith wrote.

He asked the court to use certiorari before judgment, an unusual procedure to leapfrog the appeals court. It is typically used in cases involving national crises, like President Richard M. Nixon’s refusal to turn over tape recordings to a special prosecutor.

As in the Nixon case, Mr. Smith wrote, “the circumstances warrant expedited proceedings.” He added, “The public importance of the issues, the imminence of the scheduled trial date, and the need for a prompt and final resolution of respondent’s immunity claims counsel in favor of this court’s expedited review at this time.”