WASHINGTON D.C. — Special counsel and former Assistant U.S. Attorney Jack Smith asked the U.S. Supreme Court this afternoon for clarity on whether former President Donald Trump can be prosecuted for his election subversion attempts following the 2020 election.
The filing for a writ of certiorari asks the Court to determine “[w]hether 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.” A writ of certiorari — or a “cert petition” — is a request that the Supreme Court review a lower court case.
Just last week, U.S. District Court Judge Tanya Chutkan, who is overseeing Trump’s Jan. 6 federal indictment case brought by Smith, denied a motion by the former president to dismiss the case on grounds of presidential immunity. Trump has appealed that decision, and Smith’s request signals a desire to have the question answered once and for all.
Smith’s filing immediately thrusts a historic case to the nation’s highest court. The request for immediate review is an “extraordinary request” in an “extraordinary case,” as described by the U.S. Department of Justice. Trump was indicted in August by a federal grand jury on four charges including conspiracy to defraud the United States and obstruction of, and attempt to obstruct, an official proceeding.
Highlighting the significance of the case, Smith wrote that the charges “implicate a central tenet of our democracy” and that the case’s broad public interest requires an “immediate resolution of the immunity question to permit the trial to occur on an appropriate timetable.”
Smith added that because of the uncertain timing of Trump’s appeal and the potential for rehearing requests en banc (before a full court), the Court should weigh in before the appeals court issues a ruling “to allow the Court to provide the prompt and definitive resolution that the issues… require.”
In support of his request, Smith points to a case stemming from former President Richard Nixon’s Watergate scandal in which the Court granted the government’s request for certiorari. Today’s filing argues that the case presented “similarly consequential issues of presidential privilege.”
Smith’s request acknowledges that while no precedent supports Trump’s claim of immunity, the question has never been settled by the nation’s highest court.
Trial in the case is scheduled for March 4, 2024 and the former president has pleaded not guilty.