Drew Angerer/Getty Images; Eduardo Munoz Alvarez-Pool/Getty Images
- Jack Smith wants the Supreme Court to weigh in on whether Trump is immune from criminal prosecution.
- Trump and his lawyers have argued that the election interference case against him should be tossed.
- Smith wants to bypass an appellate court to keep the March 4 trial date on track.
Can Donald Trump be charged with a crime?
Justice Department Special Counsel Jack Smith has asked the Supreme Court to weigh in — and fast.
In an unusual court filing, Smith's team has asked the Supreme Court to address former President Donald Trump's claim that, as a former president, he is immune from being criminally charged.
The Supreme Court agreed on Monday to consider the request by Smith expeditiously and ordered Trump to respond to Smith's petition by December 20. This does not necessarily mean the Supreme Court will take the case.
"Petitioner's motion to expedite consideration of the petition for a writ of certiorari before judgment is granted, and respondent is directed to file a response to the petition on or before 4 p.m. (EST) on Wednesday, December 20, 2023," the court said in a Monday order.
Trump is appealing a ruling by US District Judge Tanya Chutkan, who rejected his arguments that he couldn't face charges.
The trial — on charges Trump tried to overturn the 2020 election — is set to begin on March 4. Trump's appeals could slow down the process and push back the trial date.
"The United States recognizes that this is an extraordinary request. This is an extraordinary case," Smith's team wrote in the filing.
Smith's request would bypass the federal appeals court currently hearing Trump's argument. The prosecutor asked the Supreme Court to move quickly.
"A cornerstone of our constitutional order is that no person is above the law," Smith's legal team wrote in the request to the Supreme Court. "The force of that principle is at its zenith where, as here, a grand jury has accused a former President of committing federal crimes to subvert the peaceful transfer of power to his lawfully elected successor. Nothing could be more vital to our democracy than that a President who abuses the electoral system to remain in office is held accountable for criminal conduct."
The criminal charges brought in Washington, DC, federal court allege Trump illegally obstructed Congress and engaged in a conspiracy to defraud the government when he plotted to overturn the results of the 2020 election and stop Congress from certifying them.
It's separate from another criminal case Smith is overseeing against Trump, over his taking government documents with him to Mar-a-Lago and other properties when he left the presidency.
Trump has also been charged by Fulton County's district attorney in Georgia for interfering in the 2020 election, and by the Manhattan district attorney's office for falsifying business documents related to hush-money payments to Stormy Daniels.
The legal issues in the DC case are particularly knotty since they concern Trump's conduct while he was the President of the United States, a position that confers broad legal immunity for his actions.
Trump was also acquitted by the US Senate in his second impeachment trial over his interference in the election.
But, Chutkan wrote in an earlier opinion, Trump's legal protections don't shield him from prosecution in a criminal case.
Trump and his attorneys have indicated that they would appeal Chutkan's ruling all the way to the Supreme Court.
By asking the court to rule directly on the issue — and quickly — Smith appears to be trying to keep the case on track for a March trial.
That'd be long before the 2024 presidential election in November, where Trump, the GOP frontrunner, could win and theoretically pardon himself or order the Justice Department to drop the charges if they're still pending.
"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," Smith wrote, saying Trump's "claims are profoundly mistaken, as the district court held. But only this Court can definitively resolve them."