Former President Donald Trump kicked off a last-ditch effort to preserve his claim of total immunity from criminal charges by asking the Supreme Court on Monday to intervene, filing an application for a stay of a lower-court ruling that he cannot use immunity as a defense.
“President Trump is the leading candidate for President in the 2024 election,” Trump’s attorneys wrote in the application. “Conducting a months-long criminal trial of President Trump at the height of election season will radically disrupt President Trump’s ability to campaign against President Biden – which appears to be the whole point of the Special Counsel’s persistent demands for expedition.”
“The D.C. Circuit’s order thus threatens immediate irreparable injury to the First Amendment interests of President Trump and tens of millions of American voters, who are entitled to hear President Trump’s campaign message as they decide how to cast their ballots in November.”
At issue is a decision handed down last week by a panel of three judges of the U.S. Court of Appeals for the D.C. Circuit, which said the former president cannot invoke presidential immunity as a defense against criminal charges related to his attempts to overturn the 2020 presidential election and a violent insurrection at the Capitol.
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“For the purpose of this criminal case, former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant,” the judges wrote. “But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution.”
The unanimous 57-page decision marked a major blow to the former president and his defense team’s strategy, which hinges on the idea that the four-count indictment handed down by a grand jury last year should be tossed because it arose from actions he took while in the White House.
The request for a stay precedes an expected appeal to the high court and was not a surprise. It falls in line with Trump’s tactic of attempting to delay his legal proceedings and holds potential ramifications for the 2024 election, as what the court does and how quickly it does it will factor into whether Trump will stand trial before or after voters head to the polls in November.
“President Trump’s claim that Presidents have absolute immunity from criminal prosecution for their official acts presents a novel, complex, and momentous question that warrants careful consideration on appeal,” the application states.
Until the Supreme Court acts on the request for a stay, the appellate judges will delay formally sending their decision, or “mandate,” to U.S. District Judge Tanya Chutkan, who is overseeing the election interference trial. Chutkan previously postponed the trial so the issue of immunity could be settled.
Given that the decision from the appellate judges was unanimous and eviscerated Trump’s arguments, legal experts have expressed doubt the Supreme Court would be inclined to take up Trump’s appeal, let alone grant him a stay. And if the justices do agree to hear the appeal, then many think it almost certainly means they will affirm the appellate decision on immunity.
“This is, as the court of appeals made clear, a very rock-solid case against the idea that Trump has immunity from criminal prosecution,” said Fred Wertheimer, president and CEO of Democracy 21, a nonpartisan, nonprofit organization that focuses on strengthening democracy. “The court opinion basically made clear that this immunity argument has no merit.”
Rendering controversial and politically polarizing decisions related to the fate of American democracy hardly seems like something the high court – which has a conservative majority and three justices hand-picked by Trump – would want to do ahead of the presidential election.
Regardless, the current legal landscape as it relates to Trump is likely to force the high court’s hand.
“What happens next is going to decide whether we get a speedy trial in this case or whether it drags on and possibly carries over to after the election,” Wertheimer said. “If [Trump] can drag this on until after the election, and if he wins, he will quickly kill this case, so what the Supreme Court is deciding in the procedures it adopts will go a long way to ensure whether the trial takes place or not.”
“The Supreme Court knows how to move very quickly, and they can move quickly to ensure that this case is tried in an appropriate time frame,” he added. “The American people are entitled to know if Trump is a convicted criminal or not before they cast their vote in the presidential election. That’s the question, really, that the Supreme Court is going to face.”
As it stands, the justices are already poised to hear an appeal of one of the key charges filed against those who participated in the insurrection at the Capitol – a decision that could reconsider whether the actions of rioters were criminal and rewrite the legacy of the day – and are set to issue a decision on whether Trump can stay on the ballot in Colorado.
The decision in the latter case, for which the justices heard oral arguments last week, could come as soon as this week, given how skeptical the court seemed to be of barring Trump from the ballot.
